Environment Protection Authority v Hill; Environment Protection Authority v Stockwell International Pty Ltd - [2017] NSWLEC 72

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Environment Protection Authority v Hill; Environment Protection Authority v Stockwell International Pty Ltd [2017] NSWLEC 72
Hearing dates: 12 May 2017
Date of orders: 22 June 2017
Decision date: 22 June 2017
Jurisdiction: Class 5
Before: Pain J
Decision:
See pars 104-105

Catchwords:
SENTENCE – environmental offence – plea of guilty to offence of unsafe transport of dangerous goods by contractor – moderate objective seriousness – mitigating factors considered – early plea of guilty
SENTENCE – environmental offence – plea of guilty to offence of unsafe transport of dangerous goods by truck driver – low objective seriousness – mitigating factors considered – early plea of guilty - capacity to pay a fine considered
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 ss 3A, 10, 10A, 21A
Criminal Procedure Act 1986 s 257B
Dangerous Goods (Road and Rail Transport) Act 2008 ss 3, 9
Dangerous Goods (Road and Rail Transport) Regulation 2014 cll 3, 21, 32, 78, 79, 81, 82, 83, 99, 135, 191, 192, 199
Fines Act 1996 s 6
Road and Rail Transport (Dangerous Goods) Act 1997 ss 35, 37
Road Rules 2008 r 300–2
Cases Cited: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357
Bentley v BGP Properties Pty Limited (2006) 145 LGERA 234; [2006] NSWLEC 34
Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683
Environment Protection Authority v Barnes [2006] NSWCCA 246
Environment Protection Authority v Embridge Crest Pty Ltd [2002] NSWLEC 238
Environment Protection Authority v George Weston Foods Ltd [2013] NSWLEC 16
Environment Protection Authority v Hopley [2003] NSWLEC 112
Environment Protection Authority v Kitco Transport Australia Pty Ltd [2013] NSWLEC 39
Environment Protection Authority v MacDermid Overseas Asia Ltd [2007] NSWLEC 225
Environment Protection Authority v Mainfreight Distribution Pty Ltd [2015] NSWLEC 6
Environment Protection Authority v Moama Refinery Pty Ltd [2002] NSWLEC 244
Environment Protection Authority v Patrick Distribution Pty Ltd [2006] NSWLEC 123
Environment Protection Authority v Ravensworth Operations Pty Ltd [2012] NSWLEC 222
Environment Protection Authority v Waste Recycling and Processing Corporation (2006) 148 LGERA 299; [2006] NSWLEC 419
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
Hoare v R (1989) 167 CLR 348; [1989] HCA 33
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Plath v Rawson (2009) 170 LGERA 253; [2009] NSWLEC 178
R v Olbrich (1999) 199 CLR 270; [1999] HCA 54
R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
R v Visconti [1982] 2 NSWLR 104
Veen v The Queen (1979) 143 CLR 458; [1979] HCA 7
Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14
Category: Sentence
Parties:
16/307291
Environment Protection Authority (Prosecutor)
Darren Hill (Defendant)
16/307292
Environment Protection Authority (Prosecutor)
Stockwell International Pty Ltd (Defendant)
Representation:
COUNSEL:
16/307291
R Ranken (Prosecutor)
P Cutler (Defendant)

16/307292
R Ranken (Prosecutor)
M Wright (Defendant)

SOLICITORS:
16/307291
Department of Environment Climate Change & Water (Prosecutor)
Quy Lawyers (Defendant)
16/307292
Department of Environment Climate Change & Water (Prosecutor)
Marsdens Law Group (Defendant)

File Number(s): 16/307291 and 16/307292

Judgment

Sentencing for two dangerous goods offences

The Defendants Stockwell International Pty Ltd (Stockwell) and Mr Darren Hill have each pleaded guilty to an offence of failing to ensure that dangerous goods transported by road were transported in a safe manner contrary to s 9(1) of the Dangerous Goods (Road and Rail Transport) Act 2008 (DG Act). Their pleas of guilty mean that the essential legal elements of the offence have been admitted per R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at 275. It is necessary to sentence the Defendants. Toll Global Forwarding Pty Ltd (Toll) has been charged with a similar offence arising from the same incident. At the time of these sentencing hearings Toll had yet to enter a plea. The statement of agreed facts includes reference to Toll’s role as consignor of the dangerous goods. The offences charged are strict liability offences.
The offences involved the transportation of 16,066 kg of expandable polymeric beads, a classified dangerous good, on 17 October 2014. Rmax Rigid Cellular Plastics (Rmax) purchased the goods from a Chinese company and engaged Toll to arrange their importation and transportation to its premises in Smithfield NSW. Toll engaged Stockwell to transport the goods by road upon their arrival at Port Botany. After transporting the goods to its premises in Botany an employee of Stockwell contacted Mr Hill, a truck driver employed by NDS Transport Pty Ltd (NDS), by telephone to arrange delivery of the goods to Rmax. Neither Mr Hill nor the vehicle he was driving were licenced to transport dangerous goods. Mr Hill drove the goods through tunnels in which dangerous goods are prohibited. These breaches came to the attention of authorities after Mr Hill’s vehicle was stopped at a heavy vehicle checking station on the M5 Motorway at Kingsgrove.
Offences under the DG Act are properly characterised as environmental offences having regard to s 3 of that Act, see Environment Protection Authority v Patrick Distribution Pty Ltd [2006] NSWLEC 123 at [48].

Dangerous Goods (Road and Rail Transport) Act 2008

The purpose of the DG Act is set out in s 3:

3 Purpose
The purpose of this Act is to regulate the transport of dangerous goods by road and rail in order to promote public safety and protect property and the environment.

The provision under which the Defendants were charged provides:

Part 2   Licensing and safety obligations
...
9 Duties concerning the transport of dangerous goods
(1)   A person involved in the transport of dangerous goods by road or rail who fails to ensure that the goods are transported in a safe manner is guilty of an offence.
(2)   If a person involved in the transport of dangerous goods by road or rail fails to comply with a provision of this Act or the regulations in circumstances where the person knew, or ought reasonably to have known, that the failure would be likely to endanger the safety of another person or of property or the environment, the person is guilty of an offence.
(3)   It is a defence to any proceedings against a person for an offence against subsection (1) if the person proves that:
(a)   it was not reasonably practicable for the person to comply with the provision, or
(b)   the commission of the offence was due to causes over which the person had no control and against the happening of which it was impracticable for the person to make provision.

Maximum penalty: 500 penalty units or imprisonment for 2 years, or both, for an individual or 2,500 penalty units for a body corporate.

Dangerous Goods (Road and Rail Transport) Regulation 2014

The Dangerous Goods (Road and Rail Transport) Regulation 2014 (DG Regulation) relevantly provides:

Part 1 Preliminary
Division 1 Introductory and application
…
3 Main objects
The main objects of this Regulation are:
(a)   to set out the obligations of persons involved in the transport of dangerous goods by land transport, and
(b)   to reduce as far as practicable the risks of personal injury, death, property damage and environmental harm arising from the transport of dangerous goods by land transport, and
(c)   to give effect to the standards, requirements and procedures of the ADG Code so far as they apply to the transport of dangerous goods by land transport, and
(d)   to promote consistency between the standards, requirements and procedures applying to the transport of dangerous goods by land transport and other modes of transport.
...
Division 2 Interpretation
9 Definitions
(1) In this Regulation, unless the contrary intention appears:
ADG Code means the Australian Code for the Transport of Dangerous Goods by Road and Rail, approved by the Transport and Infrastructure Council, as in force or remade from time to time...
...
Part 5 Consignment procedures
…
Division 2 Placarding
78 When load must be placarded
(1)   A load that contains dangerous goods must be placarded if:
(a)   it contains:
(i)   dangerous goods in a receptacle, other than an article, with a capacity of more than 500 litres, or
(ii)   more than 500 kilograms of dangerous goods in a receptacle, other than an article, or

(b)   it contains an aggregate quantity of dangerous goods of 250 or more and those goods include:
(i)   dangerous goods of UN Division 2.1 that are not aerosols, or
(ii)   dangerous goods of UN Division 2.3, or
(iii)   dangerous goods of Packing Group I, or

(c)   it contains dangerous goods of Category A of UN Division 6.2, or
(d)   it contains an aggregate quantity of dangerous goods of UN Division 6.2 (other than Category A) of 10 or more, or
(e)   it contains an aggregate quantity of dangerous goods of 1,000 or more.

(2)   However, a load containing an aggregate quantity of dangerous goods of less than 2,000 that consists only of the following dangerous goods is not a load that must be placarded:
(a)   dangerous goods that are packed in limited quantities,
(b)   the following dangerous goods:
(i)   fireworks that are bon bons, party poppers or sparklers,
(ii)   domestic smoke detectors containing radioactive material,
(iii)   lighters or lighter refills containing flammable gas,
(iv)   fire extinguishers with compressed or liquefied gas, up to a net mass of 23 kg,

(c) a combination of the dangerous goods referred to in paragraphs (a) and (b).

79 Meaning of “appropriately placarded”
(1)   A person placards a load that contains dangerous goods if the person affixes, stencils, prints or places a label (as defined in the ADG Code) or an emergency information panel (as defined in section 5.3.1.3 of the ADG Code) in relation to the load on any thing that is being, or that is to be, used to transport the load.
(2)   In this Division, a placard load is appropriately placarded if it is placarded in accordance with Chapter 5.3 of the ADG Code.
...
81 Loader’s duties
(1)   A person who loads dangerous goods on to a vehicle for transport must ensure that the load is appropriately placarded if the person knows, or reasonably ought to know, that the goods are a placard load.
Maximum penalty: 40 penalty units for an individual or 200 penalty units for a corporation.
…
82 Prime contractor’s and rail operator’s duties
(1)   A prime contractor or rail operator must not transport dangerous goods if the prime contractor or rail operator knows, or reasonably ought to know, that:
(a) the goods are a placard load, and
(b) the load is not appropriately placarded.
Maximum penalty: 40 penalty units for an individual or 200 penalty units for a corporation.
…
83 Driver’s duties
(1)   A person must not drive a road vehicle transporting dangerous goods if the person knows, or reasonably ought to know, that:
(a)   the goods are a placard load, and
(b)   the load is not appropriately placarded.
Maximum penalty: 20 penalty units.
…
Part 8 Stowage and restraint
99 Loader’s duties
(1)   A person who loads for transport in or on a vehicle a load that contains dangerous goods that is a placard load must ensure that the goods and their packaging are stowed, loaded and restrained in accordance with Chapter 8.1 of the ADG Code.
Maximum penalty: 20 penalty units for an individual or 100 penalty units for a corporation.
(2)   A person who loads for transport in or on a vehicle dangerous goods that are in a cargo transport unit must ensure that the cargo transport unit is restrained in accordance with Chapter 8.2 of the ADG Code.
Maximum penalty: 20 penalty units for an individual or 100 penalty units for a corporation.
…
Part 12 Safety equipment
135 Owner’s duties
The owner of a road vehicle must not use the road vehicle, or permit the road vehicle to be used, to transport a placard load if the road vehicle is not equipped with:
(a)   fire extinguishers and portable warning devices that comply with Part 12 of the ADG Code, and
(b)   any other equipment required under that Part.
Maximum penalty: 40 penalty units for an individual or 200 penalty units for a corporation.
…
Part 18 Licences
…
Division 2 Vehicles and drivers to be licensed under this Part
191 Vehicles to be licensed
(1)   A road vehicle must not be used to transport:
(a)   dangerous goods that are in a receptacle with a capacity of more than 500 litres, or
(b)   more than 500 kilograms of dangerous goods in a receptacle,

unless the vehicle is licensed under this Part to transport the goods.
(2)   If the Competent Authority has determined under clause 25 that a vehicle that is not licensed under this Part may be used to transport the dangerous goods described in subclause (1), the vehicle may be used to transport the goods without complying with that subclause.
192 Drivers to be licensed
A person must not drive a road vehicle transporting:
(a)   dangerous goods that are in a receptacle with a capacity of more than 500 litres, or
(b)   more than 500 kilograms of dangerous goods in a receptacle,
unless he or she holds a dangerous goods driver licence that authorises him or her to drive the vehicle with those goods.

Road Rules 2008

At the time of the incident the Road Rules 2008, which has since been repealed, relevantly provided:

300–2 NSW rule: carriage of dangerous goods in prohibited areas
(1)   The driver of a dangerous goods transporter must not use the vehicle on or in any road or tunnel (or part of a road or tunnel) specified in the Table to this rule (a prohibited area):
(a)   on any day or during any period specified in that Table for the prohibited area, or
(b)   at any time if no such day or period is specified in that Table for the prohibited area.
Maximum penalty: 20 penalty units.
…
Table—Prohibited areas
...
9   The tunnels on the M5 Motorway between Bexley Road, Bexley North, and General Holmes Drive, Kyeemagh

Evidence

The parties usefully agreed a statement of agreed facts (SOAF) which was common to both matters. The SOAF refers to tabs (annexures) which are not included in this judgment. The SOAF and its annexures became Exhibit A in these proceedings.

A.   BACKGROUND
THE OFFENCE
1. The defendants are each charged with an offence contrary to s. 9(1) of the Dangerous Goods (Road and Rail Transport) Act 2008 (the DG Act) of failing to ensure that dangerous goods transported by road were transported in a safe manner.
2.   The defendants, Stockwell International Pty Ltd (ACN 000 871 330) (Stockwell) and Mr Darren Hill (Mr Hill) entered pleas of guilty on 9 December 2016 being the first occasion the matters were listed in court.
THE REGULATION OF THE TRANSPORT OF DANGEROUS GOODS BY ROAD
3. The transport of dangerous goods by road in NSW is regulated by the DG Act and the Dangerous Goods (Road and Rail Transport) Regulation 2014 (the DG Regulation) which incorporates various provisions of the Australian Code for the Transport of Dangerous Goods by Road and Rail Seventh Edition approved by the Australian Transport Council (the ADG Code).
4.   The main objects of the DG Regulation set out in cl. 3 are:
(a)   to set out the obligations of persons involved in the transport of dangerous goods by land transport, and
(b)   to reduce as far as practicable the risks of personal injury, death, property damage and environmental harm arising from the transport of dangerous goods by land transport, and
(c)   to give effect to the standards, requirements and procedures of the ADG Code so far as they apply to the transport of dangerous goods by land transport, and
(d)   to promote consistency between the standards, requirements and procedures applying to the transport of dangerous goods by land transport and other modes of transport.

5.   The ADG Code sets out the technical and procedural requirements for a range of activities performed by various parties involved in the transport of dangerous goods by road (dangerous goods requirements).
6. Dangerous goods are defined by s. 4 of the DG Act as those substances or articles prescribed by the regulations as dangerous goods. Clause 32 of the DG Regulation prescribes that goods are dangerous goods if they satisfy the dangerous goods classification criteria set out in Part 2 of the ADG Code.
7.   The classification of dangerous goods in Australia corresponds to the United Nations Recommendations on the Transport of Dangerous Goods Model Regulations. Dangerous goods are assigned a Class Number (UN Class 1-9) which reflects the particular category of risk posed by the properties of the particular Dangerous Good. The categories include explosives, flammable liquids, flammable gases, toxic substances, oxidising substances, corrosive substances and substances with miscellaneous dangerous properties.
THE GOODS
8.   The dangerous goods that are the subject of these proceedings were approximately 16,066 kilograms of expandable polymeric beads, the raw material used in the manufacture of expanded polystyrene (the Goods).
9.   Expandable polymeric beads are designated by the ADG Code as “Polymeric beads, expandable, evolving flammable vapour” and a Class 9 Dangerous Good with UN Number 2211.
10.   Expandable polymeric beads contain propellant, pentane, isopentane and ethylbenzene which are all flammable substances. Expandable polymeric beads also contain hexabromocyclododecane, a flame-proofing agent. Expandable polymeric beads will combust if exposed to flame or temperatures above 285°C.
11.   Expandable polymeric beads also give off a pentane vapour which is flammable when it exceeds concentrations of 1.3% volume in air if exposed to naked flame or electrostatic charges.
12.   If combusted, expandable polymeric beads burn with a dense emission of soot, carbon monoxide, carbon dioxide, styrene and aliphatic hydrocarbons that are harmful to human health and the environment.
13.   The Goods were manufactured by Suzhou Changle Bubble and Plastics Company Ltd. (Suzhou) in China.
14.   Rmax Rigid Cellular Plastics, a division of Huntsman Chemicals Company Australia Pty Ltd (ACN 004 146 338) (Rmax), purchased the Goods from Suzhou for the purposes of manufacturing expanded polystyrene at its premises at 27 Chifley Street, Smithfield NSW (Rmax’s premises).
15.   The Goods were packed in 20 flexible intermediate bulk containers (FIBC), each weighing approximately 800kg. Each FIBC was marked with a dangerous goods diamond logo that indicated the Goods were Class 9 dangerous goods with the words “Caution! Keep away from all sources of ignition. Keep in a cool, well-ventilated place.”
16.   Attached to each FIBC were two A4 sized labels which are Tab A and B to these Agreed Statement of Facts (ASF). The first label featured a dangerous goods placard indicating the Goods were class 9 Dangerous Goods and the words “UN 2211 POLYMERIC BEADS, EXPANDABLE, evolving flammable vapour” (the DG labels – Tab A) The other label featured the words “EXPANDABLE POLYS F-105, NET WEIGHT: 800K LOT NO.:14H M.F.D. 2014.08.18 MADE IN CHINA” (the Product labels – Tab B).
THE DEFENDANTS
Toll Global Forwarding Pty Ltd
17.   The defendant, Toll Global Forwarding Pty Ltd (Toll), is in the business of international freight forwarding and customs clearance services for goods, including dangerous goods.
18.   Toll provided regular freight forwarding services for dangerous goods including shipping and transport by road as well as customs clearance services to Rmax from December 2006 to October 2014.
19.   Toll provided an occasional service of transporting dangerous goods by road in NSW to approximately 100 of its customers.
20.   Toll arranges the transport of dangerous goods by road for Rmax and its other customers through its NSW Transport Operations Team located at 293 Coward Street Mascot NSW.
21.   Toll is part of the Toll Group, which includes several companies involved in the transport and freight industry.

22.   At the relevant times, Toll employed the following persons:
(a)   Mr Andrew Cook as Health, Safety and Environment Manager for Australia and New Zealand;
(b)   Mr Zoran Pucoski as Transport Operations and Finance Manager for NSW;
(c)   Mr Joshua Strong as a member of the NSW Transport Operations Team.

Stockwell International Pty Ltd
23.   At all material times, Stockwell was in the business of customs brokerage and freight forwarding for dangerous goods including transport by road in NSW.
24.   In the course of this business, Stockwell was engaged in transport of dangerous goods by road in NSW on a regular basis, with dangerous goods constituting approximately 10-20% of the total freight transported by Stockwell.
25.   Stockwell conducts its business from its premises located at 1799 Botany Road, Botany NSW (Stockwell’s premises).
26.   At the relevant times, Stockwell employed the following persons:
(a)   Ms Nicole McLean as Human Resources Manager;
(b)   Mr Daniel Janecki as a Transport Allocator;
(c)   Mr Jason Tonna as the Warehouse Supervisor;
(d)   Mr Shannon Van Vemde as Transport Warehouse Manager (whose employment concluded on 4 July 2014), and;
(e)   John Wild as a driver (who retired on 25 April 2014).

Darren Hill
27.   At all material times, Mr Hill was an employee of NDS Transport Pty Ltd (ACN 149 255 792) (NDS).
28.   At all material times, Mr Hill held a Heavy Combination class licence issued by the Roads and Maritime Service (RMS) to drive heavy combination vehicles in NSW.
29.   From 16 April 2014 to 6 April 2016, Mr Hill was not licensed to drive vehicles to transport dangerous goods by road.
30.   Mr Hill previously held a dangerous goods licence from 30 March 2001 to 15 April 2014.
31.   Mr Hill currently holds a dangerous goods licence that was issued on 6 April 2016 and is current to 6 April 2020.
32.   At all material times, NDS was in the business of providing road transport services for non-dangerous goods and shipping containers.
33.   The sole director of NDS was Ms Soussan Shaikho. The only employees of NDS as at the date of the incident were Mr Hill and Mr Brett Carter, who were employed as drivers.
B.   THE DEFENDANTS’ PRACTICES AND PROCEDURES FOR TRANSPORTING DANGEROUS GOODS BY ROAD
TOLL’S PRACTICES AND PROCEDURES
34.   As at the date of the incident, the process by which Toll arranged the transport by road in NSW of dangerous goods imported by sea to Port Botany involved the following steps by its employees in the NSW Transport Operations Team:
(a)   The NSW Transport Operations Team would receive an “Exception Report” from other business units within Toll that provided notice of the arrival in port of shipping containers requiring transport by road. For shipping containers containing dangerous goods, the Exception Report would indicate that the load was “Hazardous”.
(b)   A member of the NSW Transport Operations Team would make a timeslot booking for collection of the shipping container with the operator of the container port facility (a Timeslot Request).
(c)   A member of the NSW Transport Operations Team would select a transport company from a list of subcontractors and send the Timeslot Request to the subcontractor.
(d)   If the shipping container contained dangerous goods, Toll’s “Seafreight Transport Standard Operating Procedure” (Revision 5 dated 13 December 2011) (the SOP) at [3.2.9] required the NSW Transport Operations Team to:
send the transport company the following documentation:
º   Delivery Order
º   Cartage Advice Doc Type – include HAZ contact name and mobile number
º   HAZ paperwork (located in eDocs or in the physical job file)
•  IMO or MO41
•     MSDS
•     Packing lists

35.   Documentation including exception report, timeslot requests, cartage advices and the “HAZ paperwork” would be saved and accessed through Toll’s electronic data interchange system (EDI) called “Cargowise ediEnterprise”.
36.   Delivery Orders are provided by Toll by its customers or the shipping company and contain the shipping container number and a unique number which provided together to the port operator, authorises the collection of the shipping container from the port. In this sense, Toll has formal control over the release of any dangerous goods from the port before their transport by road.
37.   Delivery orders and cartage advices for dangerous goods generally indicate the weight of the goods and that they are hazardous.
38.   “Haz Paperwork” is provided to Toll by Toll’s customers.
39.   “MO41” is an abbreviation for Australian Marine Order 41 which inter alia requires documentation that complies with the International Maritime Dangerous Goods Code to enable the importation of dangerous goods into Australia (MO41). Australian Marine Order 41 requires an MO41 to contain certain information which corresponds with the information required to be included in “transport documentation” as defined by cl. 9 of the DG Regulation that complied with Chapter 11.2 of the ADG Code.
40.   MSDS is an abbreviation for “Material Safety Data Sheet”, a document which describes the properties and risks of a chemical. MSDS documents contain general information that relates safe use and handling of the chemical as well as first aid and fire fighting measures. A MSDS does not contain initial emergency response information for vehicle incidents, as found in the Dangerous Goods Initial Emergency Response Guide.
41.   Toll did not have written contracts in place with Stockwell which set out obligations of Toll, Stockwell or its subcontractors regarding compliance with dangerous goods requirements.
STOCKWELL’S PRACTICES AND PROCEDURES
42.   Stockwell’s usual procedures regarding accepting engagements to transport dangerous goods by road are set out below.
43.   On receipt of an email or a telephone call from a person such as Toll seeking to engage Stockwell to transport dangerous goods by road, Stockwell would log the job in its EDI system. A transport allocator would then plan when the shipping container containing the dangerous goods would be collected and transported by road from the port.
44.   On engagement, it was Stockwell’s practice to request transport documentation from the company, or if that didn’t occur, the transport allocator would prepare transport documentation for the dangerous goods based on information contained in any documents sent as part of the engagement, for example a timeslot request, a delivery order or a cartage advice.
45.   If Stockwell was instructed to unpack and repack dangerous goods from a shipping container, it would be transported from the port to Stockwell’s premises where Stockwell’s warehouse supervisor would direct the unpacking of the shipping container and repacking of the goods according to the instructions.
46.   When the dangerous goods had been unpacked from the shipping container, a Stockwell employee in the role of transport dispatcher would allocate the job to a driver. It was the transport dispatcher’s role to ensure that the driver and the vehicle were licensed to transport dangerous goods by road.
47.   Stockwell maintained a register of employees who held licences, including dangerous goods driver licences. However, as at the date of the incident, Stockwell did not have any employees who held a dangerous goods driver licence and so it regularly engaged other transport companies such as NDS as subcontractors to provide drivers and vehicles to transport the dangerous goods.
48.   At all material times, Stockwell had no register or adequate system for checking whether the drivers or vehicles of subcontractors used to transport dangerous goods were licensed. Stockwell would rely on transport dispatchers to ask the subcontractor’s drivers whether the driver and the vehicle were licensed to transport dangerous goods by road. Stockwell’s employees did not verify whether the driver or vehicle were licensed, for example by sighting the licence.
49.   Stockwell did not have written contracts in place with subcontractors which set out obligations of Stockwell and the subcontractor regarding compliance with dangerous goods requirements.
50.   Usually, when the driver arrived to transport the dangerous goods, the warehouse supervisor would supervise the loading of the dangerous goods onto the vehicle.
51.   At all material times, Stockwell did not have any policies or procedures in place specific to the transport of dangerous goods by road. Stockwell did have a “Hazardous Substances” policy, but that did not apply to the transport of dangerous goods by road.
52.   Prior to the incident, Stockwell did not provide training regarding dangerous goods requirements to employees (with the exception of Mr Janecki) who were involved in the transport of dangerous goods by road.
53.   Prior to and as at the date the incident, a number of Stockwell employees who were responsible for the transport of dangerous goods had resigned or were on leave and their positions were not filled, including Shannon Van Vemde as a Transport Warehouse Supervisor, a leading hand, and John Wild as Stockwell’s only driver who held a dangerous goods licence.
NDS’ PRACTICES AND PROCEDURES
54.   NDS’s usual procedures regarding accepting engagements to transport goods by road are set out below.
55.   At all material times, Mr Hill was authorised by NDS to directly accept engagements from Stockwell on behalf of NDS to transport general freight for Stockwell, but not dangerous goods.
56.   Mr Hill had previously been engaged by Stockwell to transport expandable polymeric beads to Rmax’s premises on a number of occasions prior to 17 October 2014.
57.   On these occasions, Mr Hill accepted engagements from Stockwell’s employees directly by telephone and there was no written contract between Stockwell and NDS.
58.   Mr Hill would prepare and submit daily running sheets for each delivery to Ms Shaikho who would then later generate invoices for work done by Mr Hill and issue the invoices to Stockwell.
59.   Ms Shaikho was not made aware by Stockwell or Mr Hill of the nature of any of the goods being transported by Mr Hill for Stockwell.
60.   NDS did not have any policies or procedures regarding the transport of dangerous goods by road.
C.   THE INCIDENT
ENGAGEMENT OF TOLL BY RMAX
61.   Rmax engaged Toll to arrange the importation and transport of the Goods to its premises by providing standard instructions and the shipping documents for the Goods. The standard instructions from Rmax to Toll were to:
(a)   arrange for the shipping of the Goods from Shanghai, China to Sydney, Australia;
(b)   act as its customs broker to arrange the importation of the Goods, which included Toll arranging customs clearance for the Goods and the payment of customs fees and port fees;
(c)   arrange the transport of the Goods by road from Port Botany to Rmax’s premises, including unpacking the Goods from the shipping container and repack the Goods by placing each FIBC on a pallet prior to the delivery of the Goods to Rmax’s premises (the standard instructions).

62.   Between about 1 April 2014 and 1 October 2014, Toll engaged DGL (Aust) Pty Ltd (A.C.N. 095 949 830) trading as “DG Logistics”, “DGL Transport” and “DGL” (DGL) to transport loads of expandable polymeric beads by road from Port Botany NSW to Rmax’s premises on approximately 14 occasions. On each of these prior occasions, DGL had subcontracted the transport of those goods by road to Stockwell.
63.   On or about 1 October 2014, DGL informed Toll that it would need to directly engage Stockwell to transport dangerous goods by road from Port Botany to Rmax’s premises.
ENGAGEMENT OF STOCKWELL BY TOLL
64.   Toll engaged Stockwell by way of Mr Josh Strong, a Toll employee in the NSW Transport Operations Team, sending emails to Stockwell:
(a)   On 3 October 2014 an email attaching a “Sea FCL Arrival Time Slot Request” (Tab C to the ASF);
(b)   On 7 October 2014 an email attaching a “FCL Import Declaration Cartage advice” (Tab D to the ASF) and an “Import Delivery Order” (Tab E to the ASF) (collectively (a) – (c) are the Engagement Documents).

65.   The Engagement Documents constituted Toll’s instructions to Stockwell to undertake the following tasks, consistent with Rmax’s standard instructions:
(a)   collect the Goods in a shipping container from DP World Sydney, 42 Friendship Road Port Botany NSW (DP World);
(b)   unpack the Goods from the shipping container;
(c)   repack the Goods by placing each FIBC on a pallet;
(d)   transport the Goods by road to Rmax’s premises by 2.00pm on 17 October 2014, and;

(e)   return the empty shipping container to Maritime Container Services Pty Ltd at 20 Canal Road St Peters NSW.
66.   Information contained in the Engagement Documents indicated that:
(a)   the Goods were “Hazardous”;
(b)   the Goods were “expandable polymeric beads F-105, 16MTS”;
(c)   the net weight of the Goods was 16,066kg;
(d)   the Goods were contained in shipping container TEXU 1029395;
(e)   The handling/delivery instructions:
WUP – Wait for Pack/Unpack
24 hour Emergency Contact Number for any Rmax Chemical Issue: 1800 033 051 BULKA BAGS TO BE LOADED ONE BAG PER PALLET FOR PRODUCT EXPANDABLE POLYSTYRENE/SIDE GATES ON THE TRASPORT [sic] TRAILER IS ALSO TO BE ENGAGED AT TIME OF TRANSPORT.

67. The Engagement Documents did not contain the UN Number, the Class or Division, each Subsidiary Risk or the packing group of the Goods. Because the Engagement Documents did not contain this information, the Engagement Documents were not “transport documentation” within the meaning of s. 4 of the DG Act and cl. 9 of the DG Regulation as they did not comply with Chapter 11.1 of the ADG Code.
68.   At no time did Toll provide Stockwell with any transport documentation that complied with the ADG Code in relation to the transport of the Goods by road.
69.   At no time did Stockwell request from Toll any transport documentation that complied with the ADG Code in relation to the transport of the Goods by road.
70.   As a result of the failure of Toll to provide Stockwell with transport documentation or for Stockwell to request transport documentation from Toll, Stockwell’s employees did not identify the Goods as dangerous goods.
TRANSPORT OF THE GOODS TO STOCKWELL’S PREMISES
71.   The Goods arrived in a shipping container at DP World container terminal on 7 October 2014.
72.   Stockwell engaged Mr Les Kearney of Les Kearney Transport Pty Ltd (A.C.N. 128 412 715) to transport the shipping container that contained the Goods from DP World by road to Stockwell’s premises.
73.   On 9 October 2014, Mr Kearney collected the shipping container that contained the Goods from DP World and transported it approximately 2.5km by road to Stockwell’s premises.
74.   Mr Kearney did not have a licence to drive vehicles to transport dangerous goods by road as at 9 October 2014.
75.   Between 9 October 2014 and 17 October 2014, Stockwell employees unpacked the Goods from the container and loaded each FIBC containing the Goods separately on a pallet as per the instructions on the Engagement Documents.
ENGAGEMENT OF DARREN HILL BY STOCKWELL
76.   On or about 17 October 2014, Mr Jason Tonna, who was Stockwell’s warehouse manager, telephoned Mr Hill to request he transport the Goods by road from Stockwell’s premises to Rmax’s premises.
THE VEHICLE
77.   On 17 October 2014, Mr Hill drove a white Kenworth prime mover with registration NV65HK in combination with semi-trailer with registration NT24EP (together, the Vehicle) to Stockwell’s premises.
78.   As at 17 October 2014, the Vehicle was owned by NDS and was registered to NDS.
79.   As at 17 October 2014, the Vehicle was not licensed to transport dangerous goods.
LOADING OF THE GOODS
80.   On 17 October 2014, Mr Hill drove the Vehicle into the loading yard at Stockwell’s premises and opened the side curtains of the Vehicle.
81.   The Goods were loaded onto the semi-trailer of the Vehicle by forklifts operated by Mr Tonna and another Stockwell employee by the name of Dion.
82.   Mr Hill stood by the Vehicle and supervised the loading of the Goods onto the semi-trailer of the Vehicle.
83.   Mr Hill provided direction to Mr Tonna regarding the manner in which the Goods were loaded onto the semi-trailer of the Vehicle.
84.   Mr Hill secured the Goods onto the semi-trailer of the Vehicle with straps and closed the side curtains on the Vehicle.
85.   Mr Tonna provided Mr Hill with two copies of a delivery docket (the Delivery Dockets - Tab F to the ASF). Mr Hill was not given any other documents in relation to the transport of the Goods by road.
86.   The Delivery Dockets indicated the destination of the Goods as “Rmax” and described the Goods as “1 x 20 Haz”. The Delivery Dockets featured Toll and Stockwell’s telephone numbers but not Rmax’s contact number or a number designated as a telephone advisory service that could be contacted to obtain further information about the Goods.
87.   Mr Tonna provided Mr Hill with the Delivery Dockets for him to provide one to Rmax and for the other to be signed by a Rmax employee as an acknowledgement of delivery of the Goods.
88.   Mr Tonna informed Mr Hill that the Goods were required to be delivered by 2pm on 17 October 2014. However, neither Mr Tonna nor any other Stockwell employee provided any other instructions to Mr Hill regarding the manner of the transport of the Goods by road to Rmax’s premises.
89.   Neither Mr Tonna nor any other Stockwell employee informed Mr Hill that the Goods were dangerous goods.
90.   Mr Hill did not ask any Stockwell employee whether the Goods were dangerous goods or what was contained in the FIBCs loaded onto the Vehicle.
91.   Mr Hill has stated that he was not aware that the Goods were dangerous goods.
92.   The DG labels and the Product labels on the FIBCs containing the Goods were clearly visible to Mr Hill when he supervised the loading of the Goods onto the Vehicle.
93.   Mr Hill was aware that Rmax was in the business of manufacturing polystyrene.
94.   Mr Hill knew that the FIBCs containing the Goods were 1,000 kilogram capacity bags.
95.   Mr Hill had previously received training in relation to dangerous goods prior to him applying for, receiving and renewing a dangerous goods licence in or about 2001, 2005 and 2009 on each occasion. This training included information on the meaning of Dangerous Goods placards and labels.
96.   From Mr Hill’s training, he was aware that a black diamond and a UN number on a label indicates the contents of the packaging are dangerous goods.
97.   Mr Hill had previously been involved as a loader and a driver in the transport of expandable polymeric beads similarly packed in FIBCs and loaded on pallets from Stockwell’s premises to Rmax’s premises on a number of occasions before 17 October 2014.
98.   Mr Hill reasonably ought to have known that the Goods were dangerous goods.
TRANSPORT OF THE GOODS BY ROAD
99.   Mr Hill drove the Vehicle loaded with the Goods from Stockwell’s premises on Botany Road, north along Foreshore Road, left and east onto General Holmes Drive and continued along the M5 Motorway until the Heavy Vehicle Checking Station on the M5 Motorway at Kingsgrove (the HVCS). The total length of the journey was approximately 13 kilometres. A map of the route driven by Mr Hill on 17 October 2014 from Stockwell is Tab G to the ASF.
100.   The route driven by Mr Hill took the Vehicle through the tunnel on General Holmes Drive beneath the extension of the north-south runway of Kingsford Smith Airport and the tunnels on the M5 Motorway between Bexley Road, Bexley North, and General Holmes Drive, Kyeemagh (the tunnels).
101. The tunnels are prohibited areas for the transport of dangerous goods by road pursuant to r. 300-2 of the Road Rules 2008 in force as at 17 October 2014. Large red signs stating “NO DANGEROUS GOODS IN TUNNELS” were posted along the route taken by Mr Hill on 17 October 2014.
102.   The journey driven by Mr Hill was the first part of the most direct route between Stockwell’s premises and Rmax’s premises, which is a minimum of 37.6 kilometres.
103.   On leaving Stockwell’s premises and during the journey between Stockwell’s premises and the HVCS, the Vehicle was not appropriately placarded, was not carrying transport documentation, fire extinguishers or required emergency information in a manner that complied with the DG Regulation.

INSPECTION BY RMS
104. At all relevant times, RMS employed the following persons:
(a) Mr Neil Brencher as an inspector of the RMS and an authorised officer under the DG Act.
(b) Mr Mitchell Saba as an inspector of the RMS.

105.   The Vehicle was stopped at the Heavy Vehicle Checking Station on the M5 Motorway at Kingsgrove (the HVCS) at 10:42am by Mr Brencher.
106.   Mr Brencher inspected Mr Hill’s driver licence and performed a vehicle registration check on the Vehicle that disclosed that NDS was the registered operator of the Vehicle.
107.   Mr Hill opened the side curtains of the Vehicle at Mr Brencher’s request and Mr Brencher could readily see the Goods loaded on the Vehicle and the DG labels and the Product labels on each of the FIBC containing the Goods. Mr Brencher took photographs of the Vehicle and the Goods, which are Tab H to the ASF.
108.   Mr Brencher conducted a voluntary interview with Mr Hill after cautioning him that he did not have to say or do anything but that anything that he did say or do may be used in evidence. In the interview under caution, Mr Hill stated:
(a)   he was employed by NDS to drive the vehicle;
(b)   he was instructed by Jason of Stockwell’s to pick up the Goods;
(c)   the Goods were loaded onto the Vehicle by Jason and Dion of Stockwell’s at Stockwell’s premises by forklift;
(d)   he supervised the loading of the Goods onto the Vehicle;
(e)   he was not aware that the Goods were expandable polymeric beads or dangerous goods;
(f)   he did not have any transport documentation for the Goods, only the Delivery Dockets;
(g)   he had travelled from Stockwell’s premises along Foreshore Road and the M5, including through the tunnels;
(h)   the intended destination of the Goods was Rmax’s premises;
(i)   there were no fire extinguishers in or on the Vehicle;
(j)   he was aware his Dangerous Goods driver licence had expired;
(k)   he had previously received Dangerous Goods training.

109.   Mr Hill signed Mr Brencher’s notebook record of interview as a true record of the interview.
110. Mr Brencher conducted a visual inspection of the Vehicle to identify whether the manner in which the Goods had been transported complied with the DG Act and the DG Regulation. As a result of that inspection, Mr Brencher identified that:
(a)   the Goods were expandable polymeric beads loaded into 20 FIBCs each weighing 800 kilograms;
(b)   the Goods were dangerous goods;
(c)   the Goods were a placard load because each FIBC contained more than 500 kilograms of dangerous goods;
(d)   the Vehicle was not displaying placards or emergency information panels on the front, back or exterior of the Vehicle in accordance with Chapter 5.3 of the ADG Code;
(e)   the Vehicle was not carrying required emergency information in respect of the Goods that complied with Chapter 11.2 of the ADG Code;
(f)   the Vehicle was not carrying any fire extinguishers that complied with Part 12 of the ADG Code;
(g)   the Vehicle was not carrying transport documentation for the Goods that complied with Chapter 11.1 of the ADG Code.

111.   After the inspection, Mr Brencher completed a dangerous goods checklist on which these non-compliances were recorded. Mr Brencher then directed Mr Hill not to move the Vehicle until the non-compliances were rectified.
112.   Mr Hill contacted Mr Janecki, an employee of Stockwell to request the dispatch of a driver with a dangerous goods driver licence and transport documentation for the Goods to attend at the HVCS.
113.   Mr Janecki prepared transport documentation for the Goods and provided them to a subcontracted driver with a dangerous goods driver licence to attend at the HVCS to deliver the Goods to Rmax.
114.   The non-compliances identified by Mr Brencher were rectified and, after a further inspection at about 6pm on 17 October 2014 by Inspector Mitchell Saba, an RMS inspector, Mr Saba permitted the further transport of the Goods by road from the HVCS to Rmax’s premises.
115.   The Vehicle remained on the HVCS loaded with the Goods from 10:17am to approximately 6pm.
116. The HVCS was a road or road related area adjacent to the M5 Motorway within the definition of rr. 12 and 13 of the Road Rules 2008 as at 17 October 2014 (collectively, [61] – [116] describes the Incident).
PAYMENT FOR TRANSPORT OF THE GOODS BY ROAD
117.   Toll issued an invoice dated 30 October 2014 to Rmax for its services involved in the transport of the Goods to Rmax in the sum of $2,082.56.
118.   Stockwell issued an invoice dated 31 October 2014 to Toll for the transportation of the Goods in the sum of $1,487.53.
119.   Toll issued a further invoice dated 27 November 2014 to Rmax for Stockwell’s charges not reflected in the Toll invoice dated 30 October 2014 in the sum of $478.50.
D.   INVOLVEMENT IN THE TRANSPORT OF THE GOODS BY ROAD
TOLL’S INVOLVEMENT
120.   Toll was involved in the transport of the Goods by road in that:
(a)   Toll was a consignor because there was no transport documentation for the Goods and it directly engaged Stockwell as a prime contractor to transport the Goods by road, and;
(b)   Toll was a consignor because it had control over the Goods at DP World immediately before the Goods were transported by road to Stockwell’s premises because the Goods would not be released from DP World without Toll’s authority given in the form of the Delivery order, and;
(c)   Toll was a consignor because it had undertaken on behalf of Rmax to transport the Goods by road from Port Botany to Rmax’s premises by way of engaging sub-contractors to transport the Goods by road, and;
(d)   Toll was a consignor because it was responsible on behalf of Rmax for transporting the Goods by road from Port Botany to Rmax’s premises by way of engaging sub-contractors to transport the Goods by road, and;
(e)   Toll arranged the importation of the Goods on behalf of Rmax as its customs broker including arranging shipping of the Goods, customs clearance and the payment of customs and port fees on behalf of Rmax.

STOCKWELL’S INVOLVEMENT
121.   Stockwell was involved in the transport of the Goods by road in that:
(a)   Stockwell had undertaken on behalf of Toll to transport the Goods by road from Port Botany to Rmax’s premises by way of engaging Mr Hill as an employee of NDS as a sub-contractor to transport the Goods by road, and;
(b)   Stockwell was responsible on behalf of Toll for transporting the Goods by road from Port Botany to Rmax’s premises by way of engaging Mr Hill as an employee of NDS as a sub-contractor to transport the Goods by road, and;
(c)   Stockwell’s employees loaded the Goods onto the Vehicle by loading and placing the Goods onto the Vehicle and Stockwell managed and controlled that activity.

DARREN HILL’S INVOLVEMENT
122.   Mr Hill was involved in the transport of Goods by road in that he:
(a)   loaded the Goods in that he:
i.   supervised the loading and placing of the packages containing the Goods onto the Vehicle;
ii.   secured the packages containing the Goods onto the Vehicle by strapping them down and closing the side curtain, and;

(b) drove the Vehicle carrying the Goods by road from Stockwell’s premises to the HVCS.

E.   DEFENDANTS FAILURES TO ENSURE TRANSPORT OF THE GOODS IN A SAFE MANNER
TOLL’S FAILURES
123.   Toll did not prepare any transport documentation for the Goods that complied with the ADG Code.
124.   Toll did not provide Stockwell, NDS or Mr Hill with any transport documentation for the Goods that complied with the ADG Code.
125.   Toll engaged Stockwell to transport the Goods without undertaking any checks to ensure Stockwell was capable of transporting dangerous goods in a safe manner, for example whether:
(a)   Stockwell had policies and procedures relating to the safe transport of dangerous goods;
(b)   the drivers and vehicles Stockwell used to transport dangerous goods by road were licensed;
(c)   Stockwell had systems to ensure that the driver of the Vehicle used to transport the Dangerous Goods was given transport documentation;
(d)   the vehicles used to transport dangerous goods by road onto which a placard load of dangerous goods were loaded were appropriately placarded in accordance with Chapter 5.3 of the ADG Code;
(e)   the vehicles used to transport dangerous goods by road were equipped with required emergency information that complied with Chapter 11.2 of the ADG Code;
(f)   the vehicles used to transport dangerous goods by road were equipped with properly maintained and serviced fire extinguishers that complied with Part 12 of the ADG Code;
(g) the drivers of the vehicles used to transport dangerous goods by road were instructed not to travel through prohibited areas specified in r. 300-2 of the Road Rules 2008, in particular through the tunnels given they were on the most direct route from Stockwell’s premises to Rmax’s premises;
(h)   Stockwell’s employees and agents who were involved in the transport of dangerous goods had received appropriate instruction and training to ensure that they were able to safely transport dangerous goods by road.

126.   In the absence of undertaking any prequalification checks, Toll did not itself provide any instruction to Stockwell regarding the safe transport of the Goods by road (other than the standard instructions regarding the consignment of the Goods), for example instructions that:
(a)   the Goods was a placard load;
(b)   the front and back of the vehicle used to transport the Goods by road should be appropriately placarded;
(c)   transport documentation for the Goods was to be prepared and carried in the vehicle used to transport the Goods by road;
(d)   that fire extinguishers were to be carried in the vehicle used to transport the Goods by road;
(e)   the driver and vehicle used to transport the Goods by road were licensed;
(f)   the vehicle used to transport the Goods by road were not to use prohibited routes.

127.   Toll did not provide any instruction to Stockwell regarding its further engagement of subcontractors to undertake the transport of the Goods by road with respect to the capability of those subcontractors to comply with dangerous goods requirements or to provide instructions regarding the safe manner of transport of dangerous goods by road.
128.   On and before 17 October 2014, Toll had the capacity to include additional instructions on any engagement documents to subcontractors that was adequate to ensure the safe transport of dangerous goods by road.
129.   At the time Toll consigned the Goods, it did not provide training or instruction to its staff who involved in the consignment of the Goods for transport by road that was adequate to ensure the safe transport of the Goods by road.
130.   Training in the SOP requirements to provide transport documentation was given to members of the NSW Transport Operations Team during their induction, but no recent refresher training. Toll did not retain any documents regarding training of members of the NSW Transport Operations Team prior to 17 October 2016.
131.   In Toll’s internal investigation into the Incident, it found that:
(a)   “NSW Transport Operations Team not aware of MSDS / MO41 SOP requirements. Had no recent training.”
(b)    “People processing DG documentation don’t experience a meaningful connection between the documents and the ‘real-world’ risks of storing, handling and transporting dangerous goods”.
(c)   “Low awareness of Chain of Responsibility and Dangerous Goods requirements of Senior Management Team.”

132. At all times prior to the Incident, the above measures were reasonably practicable to ensure safe transport of the Goods, as demonstrated by the actions taken by Toll after the incident detailed below at [137].
STOCKWELL’S FAILURES
133.   At all relevant times, Stockwell failed to take steps that were adequate to ensure the safe transport of the Goods by road in that it did not:
(a)   ensure that the driver held a current dangerous goods licence by making any enquiries of Mr Hill or NDS and/or maintaining a current register of subcontractor’s drivers licences;
(b)   ensure the driver was provided with appropriate transport documentation for the Goods, either by Stockwell preparing it or requesting it from Toll;
(c)   ensure that the vehicle used was licensed to transport dangerous goods by making any enquiries of Mr Hill or NDS and/or maintaining a current register of subcontractor’s vehicle licences;
(d)   ensure that the vehicle used onto which a placard load of dangerous goods was loaded was appropriately placarded in accordance with Chapter 5.3 of the ADG Code in circumstances when the Goods were plainly a placard load of dangerous goods and Stockwell’s employees loaded the Vehicle and were in a position to observe that the Vehicle was not placarded;
(e)   ensure that the vehicle used was equipped with required emergency information that complied with Chapter 11.2 of the ADG Code, by preparing it or requesting that information from Toll;
(f)   ensure that the vehicle used was equipped with fire extinguishers that complied with Part 12 of the ADG Code by providing them to Mr Hill and instructing him to carry them in the Vehicle or by requesting Mr Hill or NDS ensure that the Vehicle was so equipped;
(g) instruct the driver not to travel through prohibited areas specified in r. 300-2 of the Road Rules 2008, in particular through the tunnels given they were the most direct route from Stockwell’s premises to Rmax’s premises;
(h)   have any policies and procedures adequate to ensure the safe transport of dangerous goods by road despite transport of dangerous goods by road constituting 10-20% of Stockwell’s business of freight forwarding;
(i)   provide training and instruction to its staff (with the exception of Daniel Janecki) adequate to ensure the safe transport of dangerous goods by road;
(j)   provide supervision of its staff adequate to ensure the safe transport of dangerous goods by road in relation to the planning of transport of the transport of dangerous goods by road, engaging subcontractors, preparing or requesting transport documentation, loading the Vehicle with the Goods or ensuring the driver and the vehicle complied with dangerous goods requirements;
(k)   ensure that the driver had received appropriate instruction and training to safely transport the Dangerous Goods by road by making enquiries of Mr Hill or NDS.

134.   At all times prior to the Incident, the above measures at [133] were reasonably practicable and Stockwell had the capacity to implement each of them, as demonstrated by its actions taken after the incident detailed below.
MR HILL’S FAILURES
135.   Mr Hill failed to ensure the dangerous goods were transported in a safe manner in that he drove the Vehicle to transport the Goods in circumstances where:
(a)   he reasonably ought to have known that the Goods were dangerous goods;
(b)   he knew that he did not hold a current dangerous goods licence and that he needed to be licensed to drive a vehicle transporting dangerous goods by road;
(c)   he knew that the Vehicle was not licensed to transport dangerous goods by road and that vehicles need to be licensed to transport dangerous goods by road;
(d)   he was not provided with transport documentation for the Goods that complied with Chapter 11.1 of the ADG Code;
(e)   the Vehicle was loaded in his presence with a placard load of dangerous goods but the Vehicle was not appropriately placarded in accordance with Chapter 5.3 of the ADG Code and Mr Hill knew or reasonably ought to have known that the load was a placard load;
(f)   he had not been provided with the required emergency information that complied with Chapter 11.2 of the ADG Code;
(g)   he knew that the Vehicle was not fitted with fire extinguishers that complied with Part 12 of the ADG Code;
(h)   the Vehicle was driven by the Defendant on and in the tunnels when he knew that the tunnels were prohibited areas for the transport of dangerous goods.

F.   RISK OF HARM CAUSED BY DEFENDANTS FAILURES TO ENSURE THE GOODS WERE TRANSPORTED IN A SAFE MANNER
136.   As a result of the failures by Toll, Stockwell and Mr Hill, there was an increased risk to the safety of Mr Hill, members of the public, emergency services personnel, property and the environment occasioned by the manner in which the Goods were transported in that:
(a)   the lack of information regarding the nature of the Goods, their inherent risks and appropriate control measures on placards, emergency information or transport documentation would:
i.   cause the driver to not to realise the Goods were dangerous goods and so fail to placard the load appropriately, carry emergency response guides or safety equipment such as fire extinguishers, or drive through prohibited areas;
ii.   cause the driver or other persons not to eliminate ignition sources in the vicinity of the Goods, particularly in the event of an incident involving a spill of the Goods and so increase the risk of the Goods or the vapour combusting;
iii.   cause the driver or other persons to not initially evacuate the area in the event of an incident such as a spill to avoid exposure to irritating or toxic concentrations of pentane vapours that may develop or any fire involving the Goods;
iv.   hinder the driver in identifying the appropriate initial response to any incident involving the Goods to prevent an escalation of that incident;
v.   hinder emergency services personnel from properly identifying the Goods and responding in a timely and effective way to any incident involving the Goods and so increase the risk of any incident escalating in severity;
vi.   prevent the driver, emergency services personnel, Police, EPA or RMS from identifying the name or contact number of the consignor or the contact number of a telephone advisory service to provide answers to any questions about the Goods being transported in the event of an incident;
vii.   cause emergency services to use inappropriate responses to any incident involving the Goods, such as spraying a water jet on a fire involving the Goods causing them to break apart and be more difficult to extinguish as well as producing a larger amount of contaminated fire water runoff with the potential for harm to the environment and public health.

(b)   The absence of fire extinguishers on the Vehicle meant the driver or another person could not promptly deal with any fire caused by the Vehicle’s engines, brakes or tyres or other sources and so heighten the risk of that fire involving the Goods and a serious incident occurring.
(c)   The transport of the Goods through the tunnels increased the risks arising if the Vehicle was involved in an incident involving the Goods including:
i.   The tunnels’ physical dimensions and the presence of traffic hampering access by emergency services and their vehicles and escape by members of the public;
ii.   in the event of a fire creating a toxic and oxygen deficient atmosphere that could cause death or serious injury to potentially large numbers of people;
iii.   in the event of a fire involving the Goods, increased rates of heat release and radiation in a confined space causing an escalation of that fire;
iv.   damage to the tunnels’ infrastructure.

(d) the transport of the Goods on roads in open areas put the public at an increased risk of injury and death if the Vehicle was involved in an incident involving the combustion of the Goods due to the quantities of soot and other emissions causing respiratory hazards and traffic delays.
(e) The transport of the Goods by road by an unlicensed driver created a risk that the driver would not have received recent training or medical assessment to ensure that the driver could transport the Goods safely and respond appropriately to any incident involving the Goods.

G.   POST-INCIDENT MEASURES TAKEN BY THE DEFENDANTS
TOLL POST-INCIDENT ACTIONS
137.   Since the incident, Toll has undertaken the following actions:
(a)   conducted an internal investigation which identified what happened, the causes of the Incident and necessary corrective measures;
(b)   ceased to engage Stockwell to transport dangerous goods by road and now engages Toll Chemical Logistics to transport expandable polymeric beads on behalf of Rmax from Port Botany to Rmax’s premises;

(c) developed a “Release of Dangerous Goods Form” which requires a carrier engaged by Toll or by a customer of Toll to transport of dangerous goods by road to certify compliance with dangerous goods requirements before Toll will release the Delivery Order to the carrier;
(d) provided training to members of the NSW Transport Operations Team and senior management regarding the SOP requirements and dangerous goods requirements.

138.   Each of these actions were reasonably practical and could have been put in place by Toll prior to 17 October 2014.
STOCKWELL POST-INCIDENT ACTIONS
139.   Since the incident, Stockwell has undertaken the following corrective actions to ensure the safe transport of dangerous goods by road by it and its subcontractors:
(a)   engaged an external consultant to review dangerous goods policies and procedures and produce an internal audit;
(b)   adopted dangerous goods policies and procedures including a “Hazardous Substances and Dangerous Goods Policy”, a “Dangerous Goods Policy”, “Chain of Responsibility Policy”, a “Procedure for Handling and Transportation of Hazardous and Dangerous Goods”, an “Emergency Plan for DG Procedure”, a “Sub-contractors management plan” and Toll has revised the “Induction Policy”;
(c)   created new forms, including a dangerous goods checklist and reviewed the template for transport documentation to ensure compliance with dangerous goods requirements;
(d)   provided training to staff and management in dangerous goods requirements and has committed to ongoing training and maintaining a training register;
(e)   implemented an ongoing audit program for compliance with dangerous goods requirements by Stockwell employees and subcontractors;
(f)   five of Stockwell employees have obtained dangerous goods driver licences;
(g)   created a register of dangerous goods licenses for its own vehicles, employed drivers and the drivers and vehicles of subcontractors it uses to transport dangerous goods by road.

140.   Each of these post-incident actions were reasonably practical to ensure the safe transport of dangerous goods by road and could have been put in place by Stockwell prior to 17 October 2014.
MR HILL POST-INCIDENT ACTIONS
141.   Mr Hill applied for and received a dangerous goods driver licence on 6 April 2016 which remains current.
142.   It was reasonably practical for Mr Hill to have obtained a dangerous goods driver licence prior to 17 October 2014.
H. OTHER MATTERS
143. The defendants have no prior convictions for offences against the DG Act or DG Regulation.
144.   Mr Hill was previously the director of NJA Transport, which was convicted in Lithgow Local Court of two offences contrary to cl. 135 of the DG Regulation for failing to equip a vehicle it owned and used to transport dangerous goods with fire extinguishers and was fined a total of $10,000.
145.   The defendants have cooperated with the prosecutor’s investigation and by agreeing to this statement of facts.
146.   Stockwell has agreed to pay the Prosecutor’s costs of the proceedings in the sum of __________
147.   Mr Hill has agreed to pay the Prosecutor’s costs of the proceedings in the sum of _________

Several photographs were taken by a Roads and Maritime Services (RMS) employee of the truck driven by Mr Hill loaded with the dangerous goods. These were attached as Tab H to the SOAF. The photographs depict the goods packed in large, white flexible intermediate bulk carriers. Each carrier was clearly marked with a diamond logo that indicated the goods were “Class 9” dangerous goods accompanied by the words “Caution! Keep away from all sources of ignition. Keep in a cool, well-ventilated place”. A label was also attached to each carrier which included the Class 9 diamond logo and the words “UN 2211 POLYMERIC BEADS, EXPANDABLE, evolving flammable vapour” (Tab A). A second label also indicated the type of goods and their provenance (Tab B).
The parties provided a supplementary statement of agreed facts (SSOAF) which became Exhibit B in these proceedings. It states:

1. A Statement of Agreed Facts was filed on 2 March 2017.
REQUIREMENT TO CARRY TRANSPORT DOCUMENTATION
2.   Dangerous goods transport documentation must be carried on the vehicle to inform the driver of the nature of the dangerous goods in the load. This allows the driver to ensure that the vehicle is appropriately placarded and that they carry the appropriate safety and protective equipment for handling the dangerous goods or for dealing with any leak, spill or fire involving the dangerous goods. It also allows the driver to select, from the emergency information that must also be carried, the appropriate initial emergency response guide in the event of an incident involving the dangerous goods.
3.   Dangerous goods transport documentation must also be carried on the vehicle to inform the emergency services of the dangerous goods in the load, so that they can identify the substances and quantities involved and effectively manage any Hazmat incident involving the dangerous goods.
4.   Dangerous goods transport documentation must also be carried which shows the name of the consignor, and the contact number of a telephone advisory service or of the consignor, to provide answers to any questions about the dangerous goods being transported.
REQUIREMENT FOR EMERGENCY INFORMATION
5.   Emergency information must be carried on a vehicle transporting a placard load to inform the driver as to the hazards of the dangerous goods in the load and the appropriate initial emergency response to be undertaken in the event of a leak or spill, or fire involving the vehicle or the load. Emergency information may also need to be accessed by other persons involved in an accident if the driver was incapacitated (eg bystander, Police, tow truck driver, RMS officer etc).
6.   Emergency information is particularly important in the case of substances such as these polymeric beads which were classified as miscellaneous class 9 dangerous goods. This classification provides no immediate indication of the types of hazards involved in any labels attached to, or descriptions on, containers, such as would be the case if the dangerous goods were a flammable liquid or a toxic solid, for example.
REQUIREMENT TO USE PLACARDS
7.   Clause 5.3.3.2 of the ADG Code states that:
A placardable unit that contains dangerous goods, or has contained dangerous goods and is not free from dangerous goods, must be placarded with emergency information panels as specified in 5.3. 1.3.

8.   IBCs are placardable units which must display emergency information panels (EIPs). The fitting of EIPs to IBCs is an Australian requirement for road and rail transport.
9.   EIPs provide information about the dangerous goods that they contain. This information includes the correct shipping name, the UN number, the relevant class label (and subsidiary risk label, if any), the Hazchem code (which informs the emergency services of the appropriate action and equipment required to manage a Hazmat incident involving the dangerous goods) and an emergency contact number.
10.   The information displayed on EIPs serves a similar purpose to the information contained in transport documentation, except that it is attached to and remains with the dangerous goods and is designed to be read at some distance, so that identification of substances involved in a leak, spill or fire can be ascertained safely without having to closely approach the dangerous goods.
11.   EIPs on IBCs also serve to highlight to persons in the transport chain that those IBCs need to be transported in accordance with the Regulation and the ADG Code. Some imported IBCs contain class 9 dangerous goods and show a UN number and class label (UN3077 and UN3082), however are exempt from ADG Code requirements.
12.   Clause 5.3.6.1.1 of the ADG Code states that:
All road vehicles transporting a placard load of dangerous goods, as determined from Table 5.3, must be placarded in accordance with 5.3.1.4 on the front and rear with placards indicating what dangerous goods are being carried.

13.   A load of dangerous goods is deemed to be a Placard Load if it consists of certain quantities of Dangerous Goods which are deemed to pose a serious risk to persons property or the environment.
14.   Vehicle placards are prescribed Dangerous Goods signs which vehicles must display in prominent positions when they carry a placard load of dangerous goods, as a warning that the vehicle is carrying a significant quantity of extremely hazardous substances. Placards are an important warning of the risks posed to persons who may, for various reasons come into contact with the dangerous being transported by a vehicle.
15.   The appropriate placards for a vehicle transporting one or more IBCs of the same product, with no subsidiary risk, would be a class label at the front of the vehicle, an EIP on each side of the vehicle and an EIP at the rear. Noting that the EIPs on the IBCs can substitute for the vehicle EIPs if they can be clearly seen from both sides and the rear.
REQUIRED SAFETY EQUIPMENT
16.   Clause 12.1.3.2 of the ADG Code states that:
A road vehicle transporting a placard load of dangerous goods must carry the personal protective equipment and safety equipment specified in Table 12.2 for all the dangerous goods in the load, based on their primary hazards and any subsidiary risks, subject to any conditions incorporated in the table and its explanatory notes.

17. The ADG Code also required that the vehicle to be fitted with a 308 dry powder fire extinguisher.
PROHIBITION ON USING PROHIBITED ROUTES AND TUNNELS
18. Rule 300-2 of the Road Rules 2008 prohibits the transport of dangerous goods in prohibited areas.

Relevant sentencing considerations

Section 3A of the Crimes (Sentencing Procedure) Act 1999 (CSP Act) identifies the purposes of sentencing. It states:

3A Purposes of sentencing
The purposes for which a court may impose a sentence on an offender are as follows:
(a)   to ensure that the offender is adequately punished for the offence,
(b)   to prevent crime by deterring the offender and other persons from committing similar offences,
(c)   to protect the community from the offender,
(d)   to promote the rehabilitation of the offender,
(e)   to make the offender accountable for his or her actions,
(f)   to denounce the conduct of the offender,
(g)   to recognise the harm done to the victim of the crime and the community.

The Environment Protection Authority (EPA) submitted that factors (a), (b), (e), (f) and (g) are most relevant to both matters.
Section 21A of the CSP Act identifies numerous matters which a court must take into account when sentencing including in relation to aggravating and mitigating factors. The EPA acknowledged that no relevant aggravating factors identified in s 21A(2) arise in either matter.

Environment Protection Authority v Stockwell International Pty Ltd (matter no 16/307292)

The Summons filed by the EPA on 14 October 2016 contained the following particulars:

(a)   The Defendant was involved in the transport of dangerous goods by road in that:
(i)   the Defendant undertook the transport of the Dangerous Goods by road otherwise than as an employee or subcontractor and/or;
(ii)   the Defendant was responsible for the transport of the Dangerous Goods by goods by road, otherwise than as an employee or subcontractor and/or;
(iii)   the Defendant was the loader of Dangerous Goods for transport by road.

(b)   Dangerous goods were transported by roads in NSW in that:
(i)   The Vehicle used to transport the Dangerous Goods by road consisted of a prime mover with NSW registration number NV65HK in combination with a semi-trailer with NSW registration number NT24EP (the Vehicle), and;
(ii)   On or about 17 October 2014, the Vehicle was loaded with the Dangerous Goods and travelled from 1799 Botany Road Botany NSW to the Heavy Vehicle Checking Station on the M5 motorway at Kingsgrove NSW on roads and road related areas in New South Wales, including the tunnel on General Holmes Drive beneath the extension of the north-south runway of Kingsford Smith Airport and the tunnels on the M5 Motorway between Bexley Road, Bexley North and General Holmes Drive, Kyeemagh.

(c) The goods transported were dangerous goods in that they were:
(i) About 16,066 kilograms of expandable polymeric beads, contained in twenty intermediate bulk containers weighing approximately eight hundred kilograms each (the Dangerous Goods), which are classified as a dangerous good Class 9 substance evolving flammable vapour by Chapter 2.9 of the Australian Code for the Transport of Dangerous Goods by Road and Rail (the ADG Code).

(d)   The time and place where the offence was committed:
(i)   On or about 17 October 2014, the Defendant loaded the Dangerous Goods onto the Vehicle at or near 1799 Botany Road, Botany in the State of New South Wales, and;
(ii)   On or about 17 October 2014 the Dangerous Goods were transported on roads and road related areas between 1799 Botany Road, Botany NSW and the Heavy Vehicle Checking Station on the M5 Motorway at Kingsgrove in the State of New South Wales, including through the tunnel on General Holmes Drive beneath the extension of the north-south runway of Kingsford Smith Airport and the tunnels on the M5 Motorway between Bexley Road, Bexley North and General Holmes Drive, Kyeemagh.

(e)   The defendant failed to ensure the dangerous goods were transported in a safe manner in that it failed to:
(i)   ensure that the Driver of the Vehicle held a current dangerous goods licence;
(ii)   ensure that the Vehicle was licensed to transport dangerous goods;
(iii)   ensure that the Driver of the Vehicle was given transport documentation for the Dangerous Goods that complied with Chapter 11.1 of the ADG Code;
(iv)   ensure that the Vehicle onto which a placard load of dangerous goods was loaded was appropriately placarded in accordance with Chapter 5.3 of the ADG Code;
(v)   ensure that the Vehicle was equipped with required emergency information that complied with Chapter 11.2 of the ADG Code;
(vi)   ensure that the Vehicle was equipped with fire extinguishers that complied with Part 12 of the ADG Code;
(vii) instruct the Driver of the Vehicle not to travel through prohibited areas specified in r. 300-2 of the Road Rules 2008, in particular through the tunnel on General Holmes Drive beneath the extension of the north-south runway of Kingsford Smith Airport and the tunnels on the M5 Motorway between Bexley Road, Bexley North and General Holmes Drive Kyeemagh;
(viii)   have adequate policies and procedures regarding the safe transport of dangerous goods by road;
(ix)   provide adequate training and instruction to its staff regarding the safe transport of dangerous goods by road;
(x)   provide adequate supervision of its staff regarding the safe transport of dangerous goods by road;
(xi)   ensure that the Driver of the Vehicle who the Defendant engaged as a sub-contractor to transport the Dangerous Goods by road had received appropriate instruction and training to ensure that he was able to safely transport the Dangerous Goods by road.

Affidavit of Ms McLean

Ms McLean Director of Stockwell swore an affidavit dated 27 March 2017. Ms McLean deposed that she has been employed by Stockwell since 1989 and became a Director in 2008. She is the Director with primary responsibility for human resources and prepared this affidavit with the full knowledge and authority of all other Directors of Stockwell. Ms McLean became aware of the facts giving rise to the offence shortly after the incident occurred on 17 October 2014.
Ms McLean deposed that Stockwell has been involved in the business of freight forwarding, customs brokerage, port transportation, warehousing and distributing for 46 years. It currently employs 80 people. At the time of the incident it employed approximately 95 people.
Approximately 20% of Stockwell’s business involves the transport of dangerous goods. Ms McLean deposed that it is not Stockwell’s usual practice to transport dangerous goods from the port to its own warehouse and store the goods for a number of days as occurred in this case. Ordinarily, dangerous goods are transported directly from the port to the client or vice versa. A driver holding a dangerous goods licence employed by Stockwell or another transport company would be allocated to this task.
Ms McLean believed that the incident arose owing to a failure by Stockwell’s staff to properly understand that the goods in question were dangerous goods and thereafter ensure proper compliance with the relevant legislative regime. Several other failures contributed to this situation. Stockwell had failed to properly train staff concerning dangerous goods and did not have proper policies or procedures in place to guide employees with respect to their obligations concerning the transport of dangerous goods. Staff were not properly supervised. Stockwell did not have a register or system for checking that drivers and vehicles assigned to transportation jobs were properly licenced and equipped to transport dangerous goods. It also failed to ensure that proper paperwork had been received from those instructing Stockwell (as Toll was on this occasion). In the event that this paperwork was not provided, Stockwell employees should have prepared the relevant documents and provided these to the driver of the goods.
Ms McLean deposed that Stockwell’s Board of Directors were made fully aware of the facts relating to the incident shortly after its occurrence and have been kept informed throughout the investigation by the EPA. The Board appreciates the seriousness of the facts and matters giving rise to the offence and expresses its sincere regret and remorse for its involvement in the incident.
As a result of an internal audit undertaken by Ms McLean immediately following the incident she concluded that Stockwell did not have proper systems in place. Interviews with the driver Mr Hill, warehouse and other staff revealed that there was a lack of awareness concerning the responsibilities in dealing with dangerous goods. An audit document identified corrective action necessary following the incident and when such action was to be taken or reviewed. Ms McLean also produced a checklist which is to be completed when trucks attend Stockwell’s premises to collect and transport dangerous goods. The checklist includes whether the vehicle is appropriately placarded, equipped with fire extinguishers and whether the driver’s dangerous goods licence has been sighted and is valid. It is the responsibility of the staff member loading the goods to complete this checklist.
On 28 October 2014 directors and employees of Stockwell met with representatives of the EPA and RMS to discuss the incident. Ms McLean, who was present at the meeting, deposed that Stockwell’s directors expressed an apology to the representatives of the EPA and RMS and gave an assurance that it would take all measures necessary to ensure that this incident did not recur. The EPA and RMS suggested actions that Stockwell should take following the incident and provided information regarding placard loads and transport documents.
Shortly after the incident 12 Stockwell employees including directors Ms McLean and Mr David Stockwell attended a training course on “Chain of responsibilities & dangerous goods awareness”. In May 2015 nine employees undertook dangerous goods licence training and in December a further two employees completed this course. In May 2016 six employees including directors Ms McLean and Mr Peter Joyce attended a course on the “Storage, handling and land transport of dangerous goods”.
Ms McLean deposed that she created a licence register and a truck and trailer register for the purposes of identifying drivers employed and subcontracted by Stockwell including those which hold a dangerous goods licence and that vehicles are properly registered. These registers are checked by the transport allocator when allocating a driver of dangerous goods to ensure that the driver and vehicle are appropriately licenced. Ms McLean also maintains an incident register which is reviewed at each meeting of Stockwell’s workplace safety committee.

In Environment Protection Authority v Hopley [2003] NSWLEC 112 the defendant pleaded guilty to an offence against s 35(2) of the DG Act 1997 in that he employed a person to transport dangerous goods who was not licenced to do so. Breaches of s 35(2) attracted the same maximum penalty as those under s 37(1). The defendant was an individual who operated and partly owned a transport business that was contracted to deliver the goods. The driver of the truck which carried the dangerous goods was an employee of the defendant. The Court found that the defendant engaged the driver to collect and deliver dangerous goods despite having been informed that he did not have a dangerous goods licence. A fine of $25,000 reduced to $15,000 for an early guilty plea was imposed. The defendant was also ordered to pay the EPA’s legal costs.
In Environment Protection Authority v MacDermid Overseas Asia Ltd [2007] NSWLEC 225 the defendant pleaded guilty to an offence against s 37(1) of the DG Act 1997. The defendant packed, loaded and consigned a mixed load of dangerous goods. Two types of incompatible dangerous goods were packed together on the same pallet despite being subject to segregation requirements under the regulatory regime. The truck carrying the goods was involved in a road accident which resulted in a chemical spill. There was no actual harm to humans or the environment but the risk of harm was significant and foreseeable. The defendant failed to complete shipping documentation so as to indicate the presence and details of all the dangerous goods and did not properly supervise persons employed and engaged to perform tasks related to the transportation of dangerous goods. The Court held the offence was more serious compared to Moama due to the defendant’s failure to segregate the incompatible goods. A fine of $100,000 reduced by 25% to $75,000 for an early guilty plea was imposed. The defendant was also ordered to pay the EPA’s legal costs of $55,000.
In Environment Protection Authority v George Weston Foods Ltd [2013] NSWLEC 16 the defendant pleaded guilty to an offence against s 9(1) of the DG Act. The defendant was the consignor and loader of over 10,000 litres of “Class 8” dangerous goods (corrosive substance). The defendant failed to properly train its loaders, did not have systems in place to ensure dangerous goods were transported in a safe manner, failed to advise the transporter that the load contained dangerous goods and failed to ensure that its transporter had provided a licenced driver and vehicle. No actual risk of harm was found meaning the offence was less serious to those committed in Moama, Embridge and MacDermid. A fine of $30,000 reduced to $20,000 for an early guilty plea and additional mitigating factors was imposed. The defendant was also ordered to pay the EPA’s legal costs of $25,000.
In Environment Protection Authority v Mainfreight Distribution Pty Ltd [2015] NSWLEC 6 the defendant pleaded guilty to an offence against s 9(1) of the DG Act. The defendant was a freight distribution company who loaded a consignment of non-segregated incompatible dangerous goods onto a truck owned by another transport company at its distribution depot. The vehicle was not placarded appropriately or equipped with required emergency equipment and information and the load was not restrained. Although the defendant had in place appropriate policies, training and procedures these were not adequately observed. The Court held that there was a serious and foreseeable risk of harm. A fine of $80,000 reduced by 30% to $56,000 for mitigating factors was imposed. The defendant was also ordered to pay the EPA’s legal costs of $32,500.
The cases with facts most similar to Stockwell’s role as transporter are MacDermid and Mainfreight. I note that in both these cases different types of incompatible dangerous goods were packed together contrary to segregation requirements under the regulatory scheme, presumably heightening the risk of harm. Similar to Stockwell, there was a serious and foreseeable risk of harm. In Mainfreight the defendant transporter had systems in place but these were not followed. The penalties imposed in MacDermid and Mainfreight are most relevant to consider.
I note that distinguishing between different classes of dangerous goods as was done by Stockwell’s counsel on the basis that the different categories reflect a hierarchy of harm was rejected by the EPA as not reflective of the classification of dangerous goods.

Penalty

When sentencing the Court must apply the instinctive synthesis approach by identifying all the relevant factors, discussing their importance and making a “value judgment as to what is the appropriate sentence given all the factors of the case”, Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [26] unanimously following Markarianv The Queen (2005) 228 CLR 357; [2005] HCA 25 at [51] per McHugh J. The sentence must reflect all the relevant objective circumstances of the offence and subjective circumstances of the defendant, see Veen v The Queen (1979) 143 CLR 458; [1979] HCA 7 at 490 and Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 at 472-473, 490-491. The sentence should not exceed what is “justified as appropriate or proportionate to the gravity of the crime considered in the light of its objective circumstances”, per Veen (No 2) at 472, 485-486, 490-491, 496 and Hoare at 354 per Mason CJ, Deane, Dawson, Toohey and McHugh JJ.
The appropriate penalty is $120,000 given the substantial failure in Stockwell’s systems at the time of the offence. That it continues in that line of business warrants some element of specific deterrence albeit less given the substantial changes in systems and training of staff since the offence. I will reduce this amount for the early plea of guilty and other mitigating factors by 30% to $84,000.

Costs

The EPA’s costs are payable under s 257B of the Criminal Procedure Act 1986. Stockwell has agreed to pay the EPA's costs of $27,000.

Environment Protection Authority v Hill (matter no 16/307291)

The Summons filed by the EPA on 14 October 2016 contained similar particulars to those in the Stockwell summons. The particulars in sub-cl (a) identify that the Defendant loaded and transported dangerous goods. The summons is identical to that issued to Stockwell in sub-cls (b), (c) and (d). The particulars in sub-cl (e) vary from the summons in Stockwell.

Particulars
(a)   The Defendant was involved in the transport of dangerous goods by road in that:
(i)   The Defendant was the driver of a vehicle that transported the Dangerous Goods by road, and;
(ii)   The Defendant was a loader of the Dangerous Goods onto a vehicle used for the transport of Dangerous Goods by road in that he:
a.   supervised the loading of the dangerous goods onto the vehicle used to transport the Dangerous Goods by road, and/or;
b.   secured the Dangerous Goods on the vehicle used to transport the Dangerous Goods by road.

(b)   Dangerous goods were transported by roads in NSW in that:
(i)   The Vehicle used to transport the Dangerous Goods by road consisted of a prime mover with NSW registration number NV65HK in combination with a semi-trailer with NSW registration number NT24EP (the Vehicle), and;
(ii)   The Vehicle was loaded with the Dangerous Goods and the Defendant drove the Vehicle from 1799 Botany Road Botany NSW to the Heavy Vehicle Checking Station on the M5 motorway at Kingsgrove NSW on roads and road related areas in NSW, including the tunnel on General Holmes Drive beneath the extension of the north-south runway of Kingsford Smith Airport and the tunnels on the M5 Motorway between Bexley Road, Bexley North and General Holmes Drive, Kyeemagh.

(c) The goods transported were dangerous goods in that they were:
(i) About 16,066 kilograms of expandable polymeric beads, contained in twenty intermediate bulk containers weighing approximately eight hundred kilograms each (the Dangerous Goods), which are classified as a dangerous good Class 9 substance evolving flammable vapour by Chapter 2.9 of the Australian Code for the Transport of Dangerous Goods by Road and Rail (the ADG Code).

(d)   The time and place where the offence was committed:
(i)   On or about 17 October 2014, the Defendant loaded the Dangerous Goods onto the Vehicle at or near 1799 Botany Road, Botany in the State of New South Wales, and;
(ii)   On or about 17 October 2014, the Defendant transported the Dangerous Goods on roads and road related areas between Botany and Kingsgrove in the State of New South Wales, including through tunnel on General Holmes Drive beneath the extension of the north-south runway of Kingsford Smith Airport and the tunnels on the M5 Motorway between Bexley Road, Bexley North and General Holmes Drive, Kyeemagh and the Heavy Vehicle Checking Station on the M5 Motorway at Kingsgrove.

(e)   The defendant failed to ensure the dangerous goods were transported in a safe manner in that he drove the Vehicle to transport the Dangerous Goods in circumstances where:
(i)   he did not hold a current dangerous goods licence;
(ii)   the Vehicle was not licensed to transport dangerous goods;
(iii)   the Vehicle did not carry transport documentation for the Dangerous Goods that complied with Chapter 11.1 of the ADG Code;
(iv)   the Vehicle was loaded with a placard load of dangerous goods but the Vehicle was not appropriately placarded in accordance with Chapter 5.3 of the ADG Code and the Defendant reasonably ought to have known that the load was a placard load;
(v)   the Vehicle was not equipped with required emergency information that complied with Chapter 11.2 of the ADG Code;
(vi)   the Vehicle was not fitted with fire extinguishers that complied with Part 12 of the ADG Code;
(vii)   the Vehicle was driven by the Defendant on and in prohibited areas, in particular through the tunnel on General Holmes Drive beneath the extension of the north-south runway of Sydney Airport and the two tunnels on the M5 motorway between Bexley Road, Bexley North and General Holmes Drive, Kyeemagh in NSW.

Affidavit of Mr Hill

The Defendant Mr Hill swore an affidavit dated 11 May 2017. Mr Hill deposed that he has been driving trucks for a living for the past 32 years. He previously owned two businesses. The first he sold in 1997 and the second was placed in liquidation in 2013. Mr Hill said that as a result of the liquidation he has no assets and received a letter of demand from the Australian Taxation Office about a year ago, although he is not bankrupt.
Mr Hill is currently employed by NDS Transport Pty Ltd (NDS). He is paid $300 per week for his work and is entitled to live in a house in Punchbowl which is leased by NDS. He lives with his brother who is currently unemployed. Mr Hill has three adult children and a young daughter for whom he pays child support of $17 per month.
Mr Hill provided some information about his financial means. He attached to the affidavit a copy of his group certificate from NDS for the financial year ending 30 June 2014 which showed earnings of approximately $20,000. Mr Hill deposed that he was unable to find group certificates in respect of subsequent years but believes his earnings were less than $15,000 per annum. Mr Hill does not have a bank account and his only asset is his superannuation fund.
Mr Hill deposed that he did not renew his dangerous goods licence after it expired on 15 April 2014 because he did not anticipate that he would be required to carry dangerous goods. He renewed this licence after undertaking the relevant training course in April 2016, before the EPA filed the charge on 14 October 2016.
In respect of the incident the subject of these proceedings, Mr Hill stated that he noticed the dangerous goods logo as he supervised the loading of the truck at Stockwell’s premises. He did not say anything because he did not want to create conflict with his employer or jeopardise NDS’s relationship with Stockwell. Mr Hill deposed that he was stopped for a random inspection at the heavy vehicle checking station at Kingsgrove. Mr Hill cooperated with the inspector from the RMS and informed him of the route he had driven including the tunnels. He waited with the truck from around 10 am to 6 pm when a licenced vehicle came to collect the goods.
Mr Hill’s second business is now in liquidation. Mr Hill confirmed that the company was convicted of two charges arising under the DG Regulation but that he had no knowledge of the facts which gave rise to those charges. Various employees of his company were responsible for the breaches.

Cross-examination of Mr Hill

Mr Hill was cross-examined in relation to the frequency of his employment and financial means. He said that he currently works four to five days per week and earns more now than he did in 2013 when he worked three to four days per week. He did not agree that his wages have substantially increased in recent years for which he cannot find any financial records. Mr Hill said that he is paid in cash. He receives pay slips with these payments but did not look for records of these.

Objective seriousness of offence

Maximum penalty

The maximum penalty for a breach of s 9(1) of the DG Act by an individual is 500 penalty units ($55,000) and/or two years imprisonment. The maximum penalty of the offence reflects the public expression by Parliament, as well as the community’s perception, of the gravity of the offence, Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698.

Statutory context

The statutory context of the offence set out above in pars 30-35 applies to Mr Hill’s offence.

Risk of harm

The risk of harm posed by the offence is as summarised in par 37 above.

Control over causes of offence

The EPA submitted that as a previous holder of a dangerous goods licence Mr Hill should have recognised that the load contained dangerous goods and taken steps to ensure they were handled in accordance with the regulatory regime. Mr Hill knew or reasonably ought to have known that the vehicle was not licenced to transport dangerous goods, was not appropriately placarded or fitted with a fire extinguisher and that he had not been provided with requisite transport documentation or emergency information. The tunnels through which he drove were prohibited areas. The EPA submitted that Mr Hill had control over the causes of the offence by virtue of his position as loader and driver of the dangerous goods.
The EPA’s submission that Mr Hill could have taken measures prior to the offence to prevent it from occurring including obtaining a dangerous goods licence does not reflect the circumstance that Mr Hill had no notice from Stockwell’s employee who arranged the job that he would be transporting dangerous goods. Mr Hill received a telephone call by Stockwell’s warehouse manager to arrange collection and delivery of the goods (SOAF at [76]). The manager participated in the loading of the goods onto the truck driven by Mr Hill and handed Mr Hill delivery dockets (SOAF at [81], [85]). At no stage was Mr Hill told by the manager or any other Stockwell employee that the goods were classified dangerous goods (SOAF at [88]-[89]). Mr Hill (or his employee NDS who is the owner of the truck for current purposes, see SOAF at [78]) was unaware before arriving at Stockwell’s premises that a licensed truck and driver was required.
Counsel for Mr Hill correctly submitted that it was not within Mr Hill’s power to provide complying documentation, placards, signage and fire extinguishers. Clause 135 of the DG Regulation imposes obligations on the owner of a truck carrying dangerous goods to carry fire extinguishers and other safety equipment. Failure to comply with that regulation carries a maximum penalty of 40 penalty units ($4,400).
Mr Hill provided conflicting accounts of when or whether he knew the load contained dangerous goods. According to the SOAF at [108(e)] Mr Hill stated in his interview with an RMS inspector at the heavy vehicle checking station that “he was not aware” of the content of the goods or that they were dangerous. The SOAF at [91] states similarly. One of the failures of Mr Hill specified is that he knew or ought reasonably to have known that the goods were dangerous goods (SOAF at [136]). In his affidavit sworn on 11 May 2017 Mr Hill deposed that he noticed the dangerous goods logo on the bags carrying the polymeric beads and that in hindsight he “wish[ed] [he] had done something at the time”. Mr Hill did have control over his decision to choose a route that involved driving through the three prohibited tunnels and admitted in the SOAF that he drove without placards and safety equipment such as a fire extinguisher.
Mr Hill’s affidavit evidence was that he had let his dangerous goods licence lapse at the time of the offence because he did not expect to drive dangerous goods when employed at NDS. The only practical measure available to Mr Hill to avoid the offence was refusing to drive the truck. Mr Hill’s responsibility was to refuse to drive the truck when he realised it was to be loaded with dangerous goods. Mr Hill said in his affidavit that he did not say anything at the time because he did not want to create conflict with his employer or jeopardise his employer’s relationship with Stockwell. I accept that Mr Hill was in a difficult position as a result of the circumstances he was unexpectedly confronted with. Ultimately his actions in loading and driving the truck with unplacarded dangerous goods through three tunnels were within his control.

Determination of objective seriousness

The dangerous goods statutory regime imposes similar obligations on all persons and entities involved in the transport of dangerous goods to take responsibility for compliance with that regime, see Environment Protection Authority v Kitco Transport Australia Pty Ltd [2013] NSWLEC 39 at [106].
Mr Hill’s case appears to be the first time a prosecutor has charged an individual driver rather than a company with this type of offence in this Court. Mr Hill was not told by a Stockwell employee that he was being asked to transport dangerous goods. Mr Hill compounded the difficult situation he found himself in by choosing to drive through three tunnels apparently aware that he was driving a load of dangerous goods.
I raised with the parties whether an order under s 10(1) (no conviction and conditional discharge of offender) or s 10A (conviction with no other penalty) of the CSP Act was appropriate. On reflection, given the responsibility placed on Mr Hill under the DG Act and Regulation, that he has had dangerous goods training and held such a licence in the past and was therefore aware of his responsibilities under the DG Act and that his decision to drive through three prohibited tunnels was entirely avoidable suggests that such an order under ss 10(1) or 10A of the CSP Act is not appropriate. I appreciate that the situation Mr Hill found himself in was difficult but cannot be considered extenuating. Mr Hill’s culpability is at the low end of objective seriousness.

Exercise of prosecutorial discretion onerous

The exercise of prosecutorial discretion to charge Mr Hill with a breach of the DG Act in this Court rather than a breach of the DG Regulation in the Local Court in the circumstances of this case appears onerous. Maximum penalties for breaching the DG Act are far greater than breaches of the DG Regulation. I consider this further in par 99 below. The EPA did not charge Mr Hill’s employer NDS. Arguably the failure of Stockwell and NDS to have a specific agreement for contracting the transport of dangerous goods (SOAF at [49]) has contributed to this offence occurring. I note that the employee of Stockwell who arranged the job has not been charged individually.
I also note that under cl 199 of the DG Regulation the relevant licencing authority must not renew a dangerous goods licence if an applicant is found guilty of an offence that makes the applicant unsuitable to be the driver of a vehicle transporting dangerous goods. Conviction for this offence may impact on the ability of Mr Hill to renew his dangerous goods licence in the future.

General deterrence

Both parties agreed that general deterrence is an important consideration in the present case. One of the purposes of prosecutions of this kind is to educate the transport industry in what is legally required in relation to dangerous goods and that includes individual drivers.

Specific deterrence

Mr Hill has obtained a dangerous goods licence since the offence (SOAF at [141]). In his affidavit Mr Hill deposed that he did not allow his dangerous goods licence to lapse by inadvertence but because he did not anticipate that he would be required to carry dangerous goods, see par 73 above. I accept his counsel’s submission that considering Mr Hill has now remedied his licencing situation any specific deterrence component of the penalty should be minimal. No specific deterrence is necessary in setting a penalty in relation to Mr Hill.

Subjective considerations

Matters to be considered in mitigation are identified in s 21A(3) of the CSP Act. The relevant sections are extracted above in par 48.

Prior record of defendant (ss 21A(3)(e)–(f))

Mr Hill has no record of prior convictions (SOAF at [143]). He was director of a company which was convicted of two charges under the DG Regulation. He asserted in his affidavit that he had no knowledge of the facts which gave rise to these offences, see par 75 above.

Likelihood of reoffending (s 21A(3)(g))

I consider Mr Hill is unlikely to reoffend given that he has now obtained a dangerous goods licence.

Remorse and contrition (s 21A(3)(i))

I accept Mr Hill’s counsel’s submission that contrition is more readily shown by his actions. Mr Hill’s cooperation with investigating authorities and decision to wait with the truck on the day of the incident (see par 74 above) are indications of contrition. I also note that Mr Hill obtained his dangerous goods licence since the offence and before he was charged and pleaded guilty at the earliest opportunity.

Assistance to authorities (ss 21A(3)(m), 23)

Mr Hill cooperated with the EPA throughout its investigation of this matter and in the preparation of the SOAF and SSOAF.

Discount for guilty plea (ss 21A(3)(k), 22)

Mr Hill entered a plea of guilty at the earliest possible opportunity (SOAF at [2]). Accordingly, he should be entitled to receive the maximum discount of 25% to the penalty imposed.

Even-handedness

None of the cases summarised above at pars 58-63 involve sentencing of an individual driver in circumstances similar to Mr Hill. In Hopley the individual defendant employed an unlicensed person to collect and deliver dangerous goods (someone in Mr Hill’s position). I do not find the cases summarised above to be of any assistance in determining the penalty in Mr Hill’s case.
I have set out above some provisions of the DG Regulation as described in the SSOAF as they might apply to the particulars of the offence. A breach of cl 83(1) of the DG Regulation dealing with a driver’s duty not to drive a placard load of dangerous goods without a placard has a penalty of up to 20 units ($2,200). In Mainfreight the statement of agreed facts extracted at [17K] noted that the driver of the vehicle transporting dangerous goods was convicted in the Local Court of five breaches of the DG Regulation. These included breaches of cl 83(1), failure to carry emergency information cl 132 (up to 15 penalty units, $1650) and failure to carry fire extinguishers cl 137 (15 penalty units, $1650), suggesting that the driver’s actions in that case are somewhat similar to those of Mr Hill. The driver was fined a total of $800 for all five breaches in the Local Court. While the precise circumstances before the Local Court in Mainfreight are not known the result highlights the potential substantial difference between the penalties imposed for breaches of the DG Regulation in the Local Court and the penalties for breaches of the DG Act imposed in this Court. The penalties available for breaches of the DG Regulation are instructive in the case of Mr Hill.

Capacity to pay a fine

Section 6 of the Fines Act 1996 provides that in fixing a penalty a court is required to consider information regarding the means of the defendant as is reasonably and practicably available.
I accept that Mr Hill has a limited capacity to pay a fine given his affidavit evidence of his current employment and lack of assets summarised above in pars 71-72. In cross-examination Mr Hill admitted that he was working more this year than in 2013 but stated that his wages had not increased substantially. He did not have any records of what he had been paid. While this evidence was unsatisfactory in lacking verification such as records the overall tenor of his evidence confirms that he is a man of limited financial means and would struggle to pay a large fine.

Costs

Costs can be awarded to a prosecutor under s 257B of the Criminal Procedure Act 1986. As no agreement has been reached with Mr Hill so far as the Court is aware these will be awarded as agreed or as assessed. While I do not know the precise amount of costs for which Mr Hill will be liable, given his financial position I infer that he will struggle to pay more than a nominal amount for costs and take this into account in setting the penalty as provided in Environment Protection Authority v Barnes [2006] NSWCCA 246.

Penalty

Applying the instinctive synthesis approach, set out above in par 66, mindful of Mr Hill’s capacity to pay a fine, Mr Hill should be penalised in the sum of $4,000, reduced by 30% for mitigating factors to $2,800.

Orders

In matter no 16/307292 the Court orders:

The Defendant Stockwell International Pty Ltd is convicted of the offence against s 9(1) of the Dangerous Goods (Road and Rail Transport) Act 2008 in that it failed to ensure that dangerous goods transported by road were transported in a safe manner on 17 October 2014.

The Defendant is fined $84,000.

The Defendant is to pay the EPA’s legal costs in the amount of $27,000.

The exhibits be returned.

In matter no 17/307291 the Court orders:

The Defendant Darren Hill is convicted of the offence against s 9(1) of the Dangerous Goods (Road and Rail Transport) Act 2008 in that he failed to ensure that dangerous goods transported by road were transported in a safe manner on 17 October 2014.

The Defendant is fined $2,800.

The Defendant is to pay the EPA’s legal costs as agreed or assessed.

The exhibits be returned.

As an administrative matter, all fines and costs should be paid to the Registrar of the Land and Environment Court.

**********

Amendments

28 June 2017 - Cover page - typographical - end of cases cited - delete stray text.

Decision last updated: 28 June 2017

Medium Neutral Citation:	Environment Protection Authority v Hill; Environment Protection Authority v Stockwell International Pty Ltd [2017] NSWLEC 72
Hearing dates:	12 May 2017
Date of orders:	22 June 2017
Decision date:	22 June 2017
Jurisdiction:	Class 5
Before:	Pain J
Decision:	See pars 104-105
Catchwords:	SENTENCE – environmental offence – plea of guilty to offence of unsafe transport of dangerous goods by contractor – moderate objective seriousness – mitigating factors considered – early plea of guilty SENTENCE – environmental offence – plea of guilty to offence of unsafe transport of dangerous goods by truck driver – low objective seriousness – mitigating factors considered – early plea of guilty - capacity to pay a fine considered
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 ss 3A, 10, 10A, 21A Criminal Procedure Act 1986 s 257B Dangerous Goods (Road and Rail Transport) Act 2008 ss 3, 9 Dangerous Goods (Road and Rail Transport) Regulation 2014 cll 3, 21, 32, 78, 79, 81, 82, 83, 99, 135, 191, 192, 199 Fines Act 1996 s 6 Road and Rail Transport (Dangerous Goods) Act 1997 ss 35, 37 Road Rules 2008 r 300–2
Cases Cited:	Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 Bentley v BGP Properties Pty Limited (2006) 145 LGERA 234; [2006] NSWLEC 34 Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Environment Protection Authority v Barnes [2006] NSWCCA 246 Environment Protection Authority v Embridge Crest Pty Ltd [2002] NSWLEC 238 Environment Protection Authority v George Weston Foods Ltd [2013] NSWLEC 16 Environment Protection Authority v Hopley [2003] NSWLEC 112 Environment Protection Authority v Kitco Transport Australia Pty Ltd [2013] NSWLEC 39 Environment Protection Authority v MacDermid Overseas Asia Ltd [2007] NSWLEC 225 Environment Protection Authority v Mainfreight Distribution Pty Ltd [2015] NSWLEC 6 Environment Protection Authority v Moama Refinery Pty Ltd [2002] NSWLEC 244 Environment Protection Authority v Patrick Distribution Pty Ltd [2006] NSWLEC 123 Environment Protection Authority v Ravensworth Operations Pty Ltd [2012] NSWLEC 222 Environment Protection Authority v Waste Recycling and Processing Corporation (2006) 148 LGERA 299; [2006] NSWLEC 419 Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 Hoare v R (1989) 167 CLR 348; [1989] HCA 33 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 Plath v Rawson (2009) 170 LGERA 253; [2009] NSWLEC 178 R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 R v Visconti [1982] 2 NSWLR 104 Veen v The Queen (1979) 143 CLR 458; [1979] HCA 7 Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14
Category:	Sentence
Parties:	16/307291 Environment Protection Authority (Prosecutor) Darren Hill (Defendant) 16/307292 Environment Protection Authority (Prosecutor) Stockwell International Pty Ltd (Defendant)
Representation:	COUNSEL: 16/307291 R Ranken (Prosecutor) P Cutler (Defendant) 16/307292 R Ranken (Prosecutor) M Wright (Defendant) SOLICITORS: 16/307291 Department of Environment Climate Change & Water (Prosecutor) Quy Lawyers (Defendant) 16/307292 Department of Environment Climate Change & Water (Prosecutor) Marsdens Law Group (Defendant)
File Number(s):	16/307291 and 16/307292