Environment Protection Authority v Patrick Distribution Pty Ltd

[2006] NSWLEC 123

Land and Environment Court

of New South Wales

CITATION:

Environment Protection Authority v Patrick Distribution Pty Ltd [2006] NSWLEC 123

PARTIES:

PROSECUTOR
Environment Protection Authority
DEFENDANT
Patrick Distribution Pty Limited

FILE NUMBER(S):

50052 of 2005

CORAM:

Pain J

KEY ISSUES:

Prosecution :- Sentencing principles - specific deterrence - equal justice in sentencing - availability of alternative charges - mitigating factors

LEGISLATION CITED:

Crimes Act 1914-1975 (Cth)
Crimes (Sentencing Procedure) Act 1999
Environmental Planning and Assessment Act 1979
Road and Rail Transport (Dangerous Goods) Act 1997
Road and Rail Transport (Dangerous Goods) (Road) Regulation 1998
Road Transport Reform (Dangerous Goods) Act 1995 (Cth)
Road Transport Reform (Dangerous Goods) Regulations 1997 (Cth)
Social Services Act 1947 (Cth)

CASES CITED:

Axer Pty Ltd v Environment Protection Authority (2001) 113 LGERA 357 ;
Barton v The Queen (1980) 147 CLR 75;
Cheung v The Queen (2001) 209 CLR 1;
Cooper v Coffs Harbour City Council (1997) 97 LGERA 125;
Environmental Protection Authority v Embridge Crest Pty Ltd [2002] NSWLEC 238;
Environmental Protection Authority v Moama Refinery Pty Ltd [2002] NSWLEC 244;
Fairfield City Council v Cavasinni Constructions Pty Limited [2005] NSWLEC 187;
GAS v The Queen; SJK v The Queen [2004] HCA 22;
Geiger v The Queen [2001] FCA 475;
Maxwell v The Queen (1996) 184 CLR 501;
Nesmat Pty Limited v Workcover Authority of New South Wales (1998) 87 IR 312 ;
Postiglione v The Queen (1987) 189 CLR 295 ;
R v Minh Zoa Liang (1995) 82 A Crim R 39;
R v O’Neill [1979] 2 NSWLR 582;
R v Sharma (2002) 54 NSWLR 300;
R v Thomson; R v Houlton (2000) 49 NSWLR 383;
R v Thompson (2000) 49 NSWLR 383;
Ryde City Council v Calleija (1998) 99 LGERA 360;
Walden v Hensler (1987) 163 CLR 558;
Wong v Melinda Group Pty Ltd 82 IR 118 ;
Scott Cameron v Eurobodalla Shire Council [2006] NSWLEC 47

DATES OF HEARING:

06/03/06

 
DATE OF JUDGMENT: 

03/17/2006

LEGAL REPRESENTATIVES:

PROSECUTOR
T.G. Howard (Barrister)
SOLICITORS
Environment Protection Authority

DEFENDANT
P. McDonald (Barrister)
SOLICITORS
Blake Dawson Waldron

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

17 March 2006

50052 of 2005 Environmental Protection Authority v Patrick Distribution Pty Ltd

JUDGMENT

1 Her Honour: The Defendant, Patrick Distribution Pty Ltd, has pleaded guilty to a charge under s37(1) of the Road and Rail Transport (Dangerous Goods) Act 1997 (the Dangerous Goods Act), that it was involved in the transportation of dangerous goods by road or rail and failed to ensure, as far as practicable, that the goods were transported in a safe manner. The plea of guilty means that the essential legal elements of the offence have been admitted.

Background

2 The summons, filed on 1 November 2005, alleges that on 25 February 2004, in the locations of Arndell Park and Little Hartley in the State of New South Wales and along the section of the Great Western Highway linking those locations, the Defendant failed to ensure the safe transportation of dangerous goods by failing to ensure the vehicle which transported these goods was correctly placarded according to the Dangerous Goods Act. In particular, it was alleged that the Defendant failed to ensure that the rear of the transport vehicle displayed placards indicating that the vehicle was carrying a load of mixed classes of dangerous goods, or separate placards for each class of dangerous goods it was carrying. It was alleged that the vehicle was not properly placarded because the rear of the trailer did not display any type of dangerous goods placard.

Relevant Legislation

3 The Dangerous Goods Act is based on the Commonwealth “template” legislation, the Road Transport Reform (Dangerous Goods) Act 1995 (Cth). The Dangerous Goods Act adopts the structure and the purpose of this Commonwealth Act.

4 Section 3 of the Dangerous Goods Act provides:

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.

5 Section 37(1) of the Dangerous Goods Act provides:

A person involved in the transport of dangerous goods by road or rail who fails to ensure, as far as is practicable, that the goods are transported in a safe manner is guilty of an offence.

6 The word “transport” is defined under s6 of the Act to include:

(a) the packing, loading and unloading of the goods, and the transfer of the goods to or from a vehicle, for the purpose of their transport, and
(b) the marking of packages and unit loads containing dangerous goods, and the placarding of containers and vehicles in which dangerous goods are transported, and
(c) other matters incidental to their transport.

7 The expression “involvement in the transport of dangerous goods” is also defined in s6 as follows:

(a) importing, or arranging for the importation of, dangerous goods into New South Wales, and
(b) marking packages and unit loads containing dangerous goods for transport by road or rail, and placarding containers and vehicles in which dangerous goods are transported by road or rail, and
(c) consigning dangerous goods for transport by road or rail, and
(d) loading dangerous goods onto a vehicle, or into a container that is to be put on a vehicle, for transport by road or rail or unloading dangerous goods that have been transported by road or rail, and
(e) undertaking, or being responsible for, otherwise than as an employee or sub-contractor, the transport of dangerous goods by road or rail, and
(f) driving a vehicle carrying dangerous goods by road or rail, and
(g) being the consignee of dangerous goods transported by road or rail, and
(h) being involved as a director, secretary or manager of a body corporate, or other person who takes part in the management of a body corporate, that takes part in an activity covered by this definition.

8 Under s37(2)(a) of the Dangerous Goods Act, the maximum penalty for the offence is $250,000 for a corporation.

9 Section 5 of the Road and Rail Transport (Dangerous Goods) (Road) Regulation 1997 adopts the Road Transport Reform (Dangerous Goods) Regulations 1997 (Cth). Cl 2.13 of the Cth regulations states that:

(1) A load of dangerous goods is a placard load if the load contains dangerous goods in bulk.
(2) A load of dangerous goods is also a placard load if the load does not contain dangerous goods in bulk, or is not a consumer commodity load, but:
a. The load contains dangerous goods of Class 6.2; or
b. For another load containing dangerous goods of Class 2.1 (except aerosols) or 2.3 or dangerous goods of Packing Group I – the aggregate quantity of dangerous goods in the load is at least 250; or
c. For any other load – the aggregate quantity of dangerous goods in the load is at least 1,000.

10 The second reading speeches of the Dangerous Goods Act were also referred to during the proceedings. The second reading speech of the then Minister for the Environment contained express references to the promotion and improvement of road safety as an objective of the legislation. In particular, she stated that:

…the bill extends responsibility for compliance to all parties in the transport chain, thereby creating a more comprehensive regulatory framework for the safe transport of dangerous goods.

The second reading speech of the Commonwealth Bill stated:
…the general offences in the act relate to breaches of duties which have the potential to undermine public safety. They therefore reflect the serious safety considerations which are at the heart of this legislation.

Charges

11 The Defendant has pleaded guilty to the following matters alleged in the summons:

(a) The Defendant was “involved in the transport of dangerous goods” by road and it was involved in the loading of dangerous goods. The capacity in which the Defendant was involved in loading the dangerous goods was that:
(i) it compiled goods to be loaded onto the subject vehicle; and
(ii) it loaded dangerous goods onto a vehicle.
(b) The Defendant, having regard to the capacity in which it was involved in the transport, failed to ensure “as far as was practicable” that the goods were transported in a safe manner in that it failed as far as was reasonably practicable to ensure that the load was correctly placarded.

Agreed Statement of Facts

12 A statement of agreed facts was filed by the parties. The Defendant’s business consists of storing, handling and distributing dangerous goods and other products by road and rail. It operates a number of depots in New South Wales, including one at Arndell Park. Companies associated with the Defendant operate a depot at Dubbo. The Arndell Park depot includes a dangerous goods storage facility and a transport terminal.

13 The Arndell Park storage facility stores dangerous goods prior to their despatch. When ready for despatch, they are compiled into a load and moved to the transport terminal where the goods are loaded onto a truck. Other in-transit goods which have been delivered to the transport terminal from off-site localities may also be loaded for despatch at this stage.

14 Part of the Defendant’s business consists of entering into contractual arrangements with consignors of dangerous goods for their transportation to various destinations. On 25 February 2004, a vehicle owned and operated by RND Transport Pty Ltd attended the Arndell Park depot. The vehicle was a Ford Louisville prime mover, with the registration number WRG805 (South Australia), and trailer registration number Q33823 (New South Wales). The driver of this vehicle appeared to hold an Environmental Protection Authority Dangerous Goods Licence.

15 At the Arndell Park depot, the vehicle was loaded with the following dangerous goods:

· Organophosphorus Pesticide Liquid

· Organochlorine Pesticide Liquid

· Hydrochloric Acid Solution

· Hypochlorite Solution

· Environmentally Hazardous Substance Liquid

16 The dangerous goods were placed on the vehicle by a forklift driven by Sam Huia, a forklift driver working for the Defendant through Adecco Labour Hire. Mr Huia did not consult the driver about the placarding of the vehicle. At the time of loading the goods, Mr Huia had not been trained with respect to the placarding of dangerous goods and lacked knowledge of what placards were appropriate for particular classes of dangerous goods.

17 Once the vehicle was loaded with the goods, the driver attended the manifest office in the Transport Terminal and obtained the manifest from the manifest clerk. The driver signed the manifest and returned a copy. Point 3 of the Driver’s acknowledgement in the manifest which must be signed by the Driver states:

“I understand that the vehicle signs must be displayed until the load is removed”.

18 The dangerous goods described in the manifest constituted a placard load, since the aggregate quantity of dangerous goods being carried by the vehicle exceeded 1,000kg or 1,000 litres (the minimum quantity for a placard load) under cl 2.13(2)(c) of the Regulations.

19 The vehicle left the Arndell Park depot at approximately 8.30pm, 25 February 2004. It was involved in a traffic accident at Mount Victoria on the Great Western Highway on 25 February 2004 at approximately 11.20pm. The accident resulted in the closure of the highway in both directions until approximately 2.45am on 28 February 2004. The driver of the vehicle was killed in the accident.

20 As a result of the accident, debris was spread on the highway. This debris included the dangerous goods in the vehicle’s load, which had been loaded at the Arndell Park depot, as well as other goods including food, metal bars and other chemical substances.

21 The placarding of vehicles carrying dangerous goods is designed to indicate to other road users and people dealing with the vehicle carrying dangerous goods that there are dangerous goods present.

22 The vehicle was required to bear placards at the front and rear of the vehicle. The form of the placarding attached to the vehicle was a device known as a “dangerous goods flip”. The sign contains all of the possible dangerous goods placards and enables one at a time to be displayed, by utilizing a hinge and clip mechanism which allows a person to choose which placard to display. When transporting dangerous goods, the relevant single placard required to be displayed reads “Dangerous Goods”, superimposed over orange and black “tiger stripes”. At the time of the accident the vehicle was not appropriately placarded in that it did not display the “tiger stripes” placard. The only signage at the rear of the vehicle was a placard with the words “Without Trucks Australia Stops”.

23 The Prosecutor and Defendant cannot say whether the appropriate placards were shown on the front and rear of the vehicle when the vehicle left the Arndell Park depot. That fact is not known.

Evidence

24 The Prosecutor relied on part of an affidavit of Alan John Ritchie, an employee of the Department of Environment and Conservation, sworn 31 October 2005 and the cross-examination of the Defendant’s witnesses. The Defendant relied the affidavits of David Graham, the National Safety Health and Environment Manager for the Defendant company, sworn 6 March 2006, Dean Hawthorn, the principal of Hawthorn consulting, a small business targeting dangerous goods and OH&S compliance, sworn 3 March 2006, and Lloyd Eldred, the General Manager of Risk Management of the Defendant company, sworn 6 March 2006, as well as the oral evidence of Mr Hawthorn.

Public purpose of Dangerous Goods Act

25 The Prosecutor submitted that it is important to have regard to the purpose of the Dangerous Goods Act, as set out in s3, which clearly imposes a positive duty on those involved in the transportation of dangerous goods to ensure that they are transported in a safe manner. The offences in the Act relate to breaches of duties which not only actually undermine public safety, but which also have the potential to do so. Therefore, although public safety was not actually compromised by the failure to placard the vehicle, the fact that it was potentially compromised is within the scope of the legislation.

26 The Prosecutor submitted that the legislation is specifically designed to cast a wide net of responsibility over those involved in the various aspects of the transportation of dangerous goods. The various parties involved cannot contract out of their criminal liability in regards to safe transportation of dangerous goods. Although the Defendant in this case had entered into an agreement for the transportation of the goods with a third party, the trucking company RND Transport Pty Ltd, it is still liable under the Dangerous Goods Act. The responsibility of the Defendant cannot be reduced because of the shared responsibility with others to ensure the safe transportation of the goods.

Potential for harm

27 The Prosecutor relied on parts of the affidavit of Alan John Ritchie, sworn 31 October 2005, as evidence of the reasons why the correct placarding of a vehicle carrying dangerous goods is fundamental to the safe transportation of those goods. The failure to ensure the vehicle was appropriately placarded had the potential to prejudice the safety of road users and risk harm to property and the environment. It also had the potential to prejudice the safety of those other drivers and emergency services personnel who attended the accident scene. Therefore the Prosecutor submitted that the potential for harm was clearly foreseeable by a person in the position of the Defendant. The Prosecutor did not submit that there was any connection between the accident which occurred and this offence.

Failure to follow procedures

28 The further actions that the Defendant could have taken to ensure that the vehicle was correctly placarded were:

(a) to indicate to the driver the particular placard that should be shown on the truck, on the assumption that the dangerous goods which have been loaded at the depot were the only dangerous goods on the truck;
(b) to confirm with the driver that there were no other dangerous goods on the truck;
(c) to ensure that all persons involved in the loading of dangerous goods, specifically in this case Sam Huia, were properly trained with respect to the placarding of dangerous goods so that they could indicate to the driver what the appropriate placarding would be; and
(d) to ensure that the loader of the vehicle complies with the Dangerous Goods Transport Guide prepared by United Transport Services, which company was bought by Patrick Distribution. That states, inter alia, on p 42 that “the loader must ensure that the load is appropriately restrained and correctly placarded”.

Specific deterrence

29 The Prosecutor submitted that specific deterrence should be taken into account in the assessment of penalty in this case, because the Defendant displayed a lack of recognition of any problem in the dangerous goods training undertaken by its employees. The Prosecutor relied on the oral evidence of Dean Hawthorn and David Graham that they could not account for why Mr Huia, the forklift operator, had not received the appropriate training. Although the Defendant had a training policy on paper, there was no explanation as to why this was not correctly followed through. The Prosecutor submitted that if the Defendant cannot account for why Mr Huia was not properly trained, then it is likely that a breach of the Dangerous Goods Act could recur.

General deterrence

30 The Prosecutor also argued that general deterrence is an important consideration. Scott Cameron v Eurobodalla Shire Council [2006] NSWLEC 47 at [71] refers to a number of authorities which emphasise the importance of general deterrence in sentencing for environmental offences. The Prosecutor submitted that the offences under the Dangerous Goods Act are properly characterised as environmental offences having regard to s3 of that Act. General deterrence is of central importance in sentencing under the Dangerous Goods Act particularly because of its objectives relating to the safety of road users.

31 The Prosecutor also relied on the case of Axer Pty Ltd v Environment Protection Authority (2001) 113 LGERA 357 which held, at 367, that

Those who handle dangerous chemicals must be regarded as under a heavy obligation to the rest of the community to do so with the utmost care.

Since the transportation of dangerous goods involves the handling of dangerous chemicals and the potential for their exposure to road users and emergency services personnel, sentencing for offences under the Dangerous Goods Act should consider the above dicta.

Evenhandedness

32 Only two other previous cases in this Court have dealt with an offence under s37(1) of the Dangerous Goods Act. These are Environmental Protection Authority v Moama Refinery Pty Ltd [2002] NSWLEC 244 and Environmental Protection Authority v Embridge Crest Pty Ltd [2002] NSWLEC 238. In Moama, the defendant was the operator of a refinery which packed and placarded dangerous goods for transport. It was the owner and consignor of these goods. That case involved leaking drums of solvent inside a truck which was not correctly placarded. These leaking drums created a risk of liquid catching fire in the area surrounding the vehicle. The defendant had no written procedure in place for assessing whether the storage drums were suitable for the liquid they contained. Embridge arose from the same incident the subject of which constituted the proceedings in Moama.

33 The Prosecutor sought a fine in the range of 10-20% of the maximum penalty because the matter is serious. In suggesting the fine in the current proceedings, the Prosecutor accepts that the seriousness of the offence in this case is less than that in Moama and Embridge, where fines of $45,000 and $30,000 were awarded respectively after discounts for mitigating circumstances.

34 The Defendant submitted that it pleaded guilty on a narrow basis. Its involvement was limited to compiling the goods to be loaded onto the subject vehicle and the actual loading of those goods. It did not transport the particular goods and it did not distribute them. The Defendant’s failure to ensure the goods were transported in a safe manner was restricted to a failure to ensure the load was correctly placarded – it did not have a duty itself to placard. The failure to ensure the placards were correctly placed was not related to the accident, nor is there any allegation that the incorrect placarding caused hindrance or delay at the accident scene. Further, it was submitted this case is much less serious than Moama. That case involved multiple breaches of a statutory duty, the cumulative effect of which established objective seriousness and culpability.

Procedures relating to dangerous goods training/specific deterrence

35 Although the Defendant accepted that the risk of incorrect placarding was foreseeable, this was not a case where the Defendant had disregarded or ignored such a risk. The affidavit of David Graham was relied on as evidence that the Defendant had systems in place to ensure that appropriate placarding was in place, in the form of written operational and training procedures which had been implemented at the Arndell Park depot at the time of the offence. The Defendant relied on the United Transport Services Dangerous Goods Transport Guide as evidence of a policy being in place which outlined the loader’s responsibility to ensure the correct placarding of the truck. The Defendant also relied on the manifest, a document which requires the driver after loading to acknowledge that the vehicle signs must be displayed until the load is removed. This system of documented procedures was also supplemented by the training of employees and workers.

36 The affidavits of David Graham and Dean Hawthorn provided evidence that compulsory induction training involved dangerous goods training, and that specific training on the need for dangerous goods placarding was also in place. David Graham’s affidavit also stated that the enforcement of the system occurs through a formal auditing process and by a system of checks to verify the appropriate procedures are in place and being adhered to. These checks include random checking of vehicles for correct licensing, documentation and signage. The Prosecutor has not criticised the substance of this system, or alleged that other policies or procedures should also have been in place.

37 Mr Huia’s lack of training was an anomaly and does not detract from the fact that Patrick Distribution has a high standard of dangerous goods training which is the usual conduct and practice of the Defendant.

38 The Defendant further submitted that specific deterrence was not necessary because Patrick Distribution has no prior convictions. It has expressed contrition and remorse in relation to the offence, demonstrated by its plea of guilty and action taken after the offence to ensure that the offence will not recur. These measures included the reinduction of all employees at Arndell Park and an increase in the frequency of random Vehicle Compliance Inspections. As part of the reinduction, employees who had not previously attended dangerous goods awareness training were required to attend the course, and there is more emphasis on the need to discuss placarding with the drivers.

Equal justice in sentencing

39 The Defendant argued that a relevant factor for the Court to consider is the requirement of equal justice in sentencing procedure, developed in Postiglione v The Queen (1987) 189 CLR 295 per Kirby J at 341, that like should be treated alike. Here, the Defendant claims that RND Transport also contributed to the offence yet has not been charged by the Prosecutor. The absence of prosecution in this regard gives rise to a justifiable sense of injustice on behalf of the Defendant.

40 The case of Nesmat Pty Limited v Workcover Authority of New South Wales (1998) 87 IR 312 was relied on in support of this argument. That case before the Industrial Relations Commission involved a fatal electric shock injury to an employee of the first defendant at an electrical substation. The appeal before the Commission related to the severity of the fine against the first defendant, which amounted to $80,000. This penalty was reduced to $30,000. One of the circumstances which the Commission considered in reducing the fine was the fact that the prosecution had originally commenced proceedings against a member of staff of the Public Works Department who had played an instrumental part in the accident, but which was later withdrawn. It was held by the Commission at 323 that this gave rise to a “justifiable sense of injustice” which warranted a reduction in penalty. Another Industrial Relations Commission case of Wong v Melinda Group Pty Ltd 82 IR 118 was also relied on.

Finding on equal justice in sentencing

41 No authority from this Court or any higher court was provided in support of this argument. I do not consider it has any application in this case in any event. The discretion of a prosecutor to lay charges as it sees fit has been recognised in many cases, recently by the High Court in GAS v The Queen; SJK v The Queen [2004] HCA 22, per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ at [28]. See also Barton v The Queen (1980) 147 CLR 75 at 94-95; Maxwell v The Queen (1996) 184 CLR 501 at 534; Cheung v The Queen (2001) 209 CLR 1 at 22 [47]. Further, cases which deal with the principle of equal justice have considered it in the context of equal justice between co-defendants, not equal justice between potential co-defendants. The case of Postiglione, which the Defendant sought to rely on, dealt with disparity in sentencing between co-offenders. Justice Miles, in the case of Geiger v The Queen [2001] FCA 475 recognised at 15 that the principle is difficult to apply where “the allegedly disparate sentences are imposed on persons not charged as co-offenders”, that is, where one or more defendants are prosecuted on different charges. This was also recognised by Kirby J in Postiglione at 338. Therefore, it is logical that the principle would be even more difficult to apply to potential multiple defendants.

42 The dangerous goods legislation provides for a range of persons involved in transporting dangerous goods to be responsible for their respective roles. The Defendant has that responsibility, which it acknowledges. No intervening third party could be said to have interfered with the discharging of that responsibility. There can be no basis on which the Defendant can be said to have a justifiable sense of injustice in my view.

Availability of alternative charges

43 The Defendant also submitted that the Court should take into account the fact that there were other charges available to the Prosecutor under the Road and Rail Transport (Dangerous Goods) Regulations (NSW) which adopt the Road Transport Reform (Dangerous Goods) Regulations 1997 (Cth). These provide in cl 7.8(1) for a maximum penalty of $15,000 for a corporation. The Defendant relied on R v Minh Zoa Liang (1995) 82 A Crim R 39. In that case, an appeal was lodged against what was alleged to have been a “manifestly excessive” sentence, based on a charge bought under Victorian legislation for fraud against a Commonwealth corporation. The Victorian legislation was based on Commonwealth legislation but had a heavier maximum penalty. It was argued on appeal that the Commonwealth legislation was more appropriate, since it was against a Commonwealth authority that the crime had taken place. In the majority, Winneke P, held at 9 that:

although it is for the prosecuting authority in its absolute discretion to determine which particular charge it will lay against an accused person, it is none the less relevant and proper for the judge on sentence to take into account as a relevant sentencing principle the fact that there was another and less punitive offence which not only could have been charged but indeed was as appropriate or even more appropriate to the facts alleged against the accused.

President Winneke held that the sentence was excessive, and imposed a lesser one. His Honour applied the decision of Scott v Cameron (1980) 48 FLR 274. That case involved social security fraud under the Crimes Act 1914-1975 (Cth). The maximum penalty under that legislation was imprisonment for two years. The charges could have been bought under the Social Services Act 1947 (Cth), under which the maximum penalty was a fine of $100 or imprisonment for six months. Justice White, at 279, held that the Court’s discretion in sentencing is not to be fettered by the prosecutor’s choice of charge:
…at least in those cases where the facts are such that the prosecution could have been equally appropriately brought under one section or the other.

Finding on availability of alternative charges

44 While no authority from this Court was provided by the Defendant in support of this argument it is useful to consider Fairfield City Council v Cavasinni Constructions Pty Limited [2005] NSWLEC 187. That case involved a prosecution under s 76A(1)(b) of the Environmental Planning and Assessment Act 1979 (EP&A Act), which states that development that needs consent must not be carried out unless the development has development consent. The penalty provided is up to 10,000 penalty units ($1.1million). The Court was also referred to s 81A(2) of the EP&A Act, which provides that building must not be commenced until a construction certificate has been issued for that work. The maximum penalty is 300 penalty units ($33,000). Justice Talbot considered whether the difference in the two penalty provisions could be taken into account under s 21A(1)(c) of the Crimes (Sentencing Procedure) Act 1999. This provides:

…
(c) any other objective or subjective factor that affects the relative seriousness of the offence.
…

45 In that case the prosecutor submitted that the very wide discretion available to the Court would enable it to have regard to the provisions of s 81A and the disparity between the penalties. The defendant submitted that the consideration of a lesser penalty is a matter that may be taken into account as a “factor that affects the relative seriousness of the offence” where the same conduct might have resulted in a lesser charge but for the selection of the charge of the prosecution. Justice Talbot referred to R v O’Neill [1979] 2 NSWLR 582, which dealt with the reverse circumstance where the Court of Criminal Appeal held that on a plea to a lesser offence, sentence is not properly passed on the basis of facts supporting a more serious offence. As Talbot J notes at [17] the opposite applied on the facts before him, where the same version of the facts equally supports the lesser charge which the prosecutor had elected not to pursue and that the matter was ultimately one of fairness to the defendant. Ultimately his Honour held at [21] that because of the concession of the prosecutor that the Court may take into account the lesser penalty provided it was open to it to do so without finally deciding as a matter of law whether it was so entitled.

46 Given the wide provisions of s 21A(1)(c) of the Crimes (Sentencing Procedure) Act 1999 and the broad discretion of the sentencing judge as recognised by Spigelman CJ in relation to the “instinctive synthesis approach” to sentencing at [57] in R v Thompson (2000) 49 NSWLR 383, it is appropriate that I take into account the existence of a lesser charge and penalty as one of the relevant factors in determining the relative seriousness of the offence and the final penalty as Talbot J did in Fairfield City Council v Cavasinni Constructions Pty Ltd. This approach is further supported by the authorities relied on by the Defendant and particularly the judgment of Winneke P set out at par 43.

Is this an environmental offence?

47 The Defendant referred to the cases of Cooper v Coffs Harbour City Council (1997) 97 LGERA 125 and Ryde City Council v Calleija (1998) 99 LGERA 360. The majority of the Court in Cooper held at 143 that general deterrence is important when dealing with significant breaches of planning laws. Justice Lloyd in Ryde held at 366 that one of the purposes of punishing offenders who come before this Court is “to deter offences against environmental planning laws in a general sense”. However the Defendant relied on other aspects of these cases. It submitted that Lloyd J stated in Ryde at 366 that it is important to have regard to the individual facts of each case when deciding on general deterrence, and that the mitigating circumstances in this case do not warrant a heavy penalty. Further, the principles in Cooper and Calleija do not apply here because the breach of the law is not serious or multifaceted, and because it is not an environmental law case, but an occupational health and safety one. Justice Brennan at 570 in Walden v Hensler (1987) 163 CLR 558 was also relied on as authority for the principle that when imposing a penalty, “care must be taken in imposing a penalty lest the offender be made to shoulder an unfair burden of community education”.

48 The Dangerous Goods Act was introduced as a bill into the New South Wales Parliament by the Minister for the Environment. Section 3 refers to the purpose of the legislation as being in part to protect the environment. The Dangerous Goods Act can be characterised as establishing a regime to prevent harm to the environment and specifically to protect people in it from dangerous goods. It can clearly be characterised as an environmental offence. I consider the environmental offence cases relied on by the Prosecutor are applicable to this matter.

Sentencing

49 Section 3A of the Crimes (Sentencing Procedure) Act 1999 sets out those matters relevant to consider in sentencing. The Prosecutor does not press any of the aggravating matters under s 21A.

50 I consider this is an environmental offence and that general deterrence is a significant factor in sentencing given the potential for harm which could result from incorrect placarding. I adopt the Prosecutor’s submissions in that regard. It is a relevant factor to consider that there is a lesser charge available under the Regulations in relation to the failure to correctly placard a vehicle which has the maximum penalty for a corporation of $15,000.

51 I do not consider there is a need to impose a particular penalty for specific deterrence. The particular failures alleged by the Prosecutor at par 28 are matters where the Defendant has taken steps to improve its systems as outlined by the affidavits relied on by the Defendant. Taking all these matters into account I consider a penalty of $15,000 is appropriate.

Matters in mitigation

52 The Crimes (Sentencing Procedure) Act 1999 is also relevant to this case. According to s22 of that Act, when determining sentencing regard must be had to a plea of guilty, and the Court can impose a lesser sentence to reflect this.

53 The Defendant entered an early guilty plea. A plea of guilty entitles the Defendant to a discount in penalty under s 22 of the Crimes (Sentencing Procedure) Act 1999 in the range of 10-25%: R v Thomson; R v Houlton (2000) 49 NSWLR 383; R v Sharma (2002) 54 NSWLR 300.

54 The Defendant has expressed remorse and contrition, demonstrated by its early guilty plea and the action it has taken to address its training procedures. The Defendant has no prior convictions.

55 Its co-operation with the Prosecutor, and its position as a responsible corporate citizen as expressed in the affidavit of Lloyd Eldred are also relevant. The Defendant has served on relevant committees which focus on the development of industry standards, Australian standards and the Code of Practice on Dangerous Goods. The Defendant’s response to the accident should also be considered. At the time of the accident the Defendant responded by activating its emergency response plan, which involved sending out a company emergency response vehicle and team to attend the accident scene. Thereafter, under the direction of the NSW Fire Brigade and the NSW Department of Environment and Conservation, the Defendant assisted in the recovery of the freight involved in the accident, the construction of a trench to capture the spilled material and run-off, and the removal and transport to a licensed facility of contaminated sand from the cleaning up of chemicals involved in the accident and soil from Crown land and private property in the vicinity of the accident. The total costs of responding in this way were over $600,000.

56 I consider that a discount of 35% is warranted in all the circumstances. The total penalty is therefore $9,750.

Orders

57 The Court orders that:

1. The Defendant is convicted of the offence with which it is charged.

2. The Defendant is fined the sum of $9,750 to be paid to the Registrar of the Court within 28 days of today's date.

3. Each party to pay its own costs, as agreed by the parties.

4. The exhibits may be returned.