Kemp v Air Liquide Australia Ltd

[2014] NSWSC 1200

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Kemp v Air Liquide Australia Ltd [2014] NSWSC 1200

Hearing dates:

31/07/2014

Decision date:

05 September 2014

Before:

Garling J

Decision:

(1) I convict Air Liquide Australia Ltd of an offence contrary to s 53 of the Road Transport (General) Act 2005.

(2) With respect to that offence, I impose a fine of $5,500.

(3) I order Air Liquide Australia Ltd to pay the prosecutor's costs in a sum which is to be agreed or which is to be assessed.

Catchwords:

CRIMINAL LAW - summary jurisdiction - offences under Road Transport (General) Act 2005 - offence by company as consignor - breach of load restraint requirements - guilty plea

CRIMINAL LAW - sentencing - Road Transport (General) Act 2005 - severe risk breach - lower end of range of seriousness - statutory requirements on sentencing - appreciable risk of harm to public safety - risk of harm to road infrastructure - risk of traffic congestion - mitigating factors - lack of relevant previous convictions - purpose of general deterrence - penalty

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999
Dangerous Goods (Road and Rail Transport) Regulation 2009
Fines Act 1996
Road Transport (General) Act 2005

Cases Cited:

Kemp v Doble, Kemp v Doble Express Transport Pty Ltd [2014] NSWSC 785
Muldrock v R [2011] HCA 39; (2011) 244 CLR 120
R v Borkowski [2009] NSWCCA 102
R v Forbes [2005] NSWCCA 377
R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383
The Roads and Traffic Authority of NSW v Fletcher International Exports Pty Ltd [2008] NSWSC 936; (2008) 51 MVR 41

Category:

Principal judgment

Parties:

Peter Stewart Kemp (P)
Air Liquide Australia Ltd (D)

Representation:

Counsel:
M Cahill (P)
T Game SC / R Ranken (D)
Solicitors:
Sparke Helmore Lawyers (P)
Norton Rose Fulbright Australia (D)

File Number(s):

2013/135800

Judgment

1. Peter Stewart Kemp, the prosecutor, commenced proceedings against Air Liquide Australia Ltd ("the Company") on 2 May 2013, alleging that it had committed, as a consignor, an offence under s 53 of the Road Transport (General) Act 2005 ("RTG Act").

1. It was alleged that on 3 May 2011, on the Lue Road, near Mudgee in NSW, a breach of a load restraint requirement had occurred with respect to goods for which the Company was the consignor.

1. On 6 June 2014, senior counsel for the Company indicated to the Court that his client was pleading guilty to that offence. A plea of guilty was entered, and the matter adjourned for evidence and submissions on sentence to 31 July 2014.

1. The Company now stands to be sentenced for this offence. The maximum penalty for this offence is 250 penalty units, which amounts to $27,500. That is because the breach of the load restraint requirement is categorised as being a severe breach of the statutory requirements.

Previous Decision

1. On 19 June 2014, I had occasion to convict Doble Express Transport Pty Ltd of an offence contrary to s 56(1) of the RTG Act, and Mr Graham Doble of an offence contrary to s 178 of the RTG Act with respect to their respective involvement in the same events with which the Company here is involved, and in respect of which it is, as well, to be convicted and sentenced.

1. The sentences which I imposed and the remarks which I made at the time are to be found in Kemp v Doble, Kemp v Doble Express Transport Pty Ltd [2014] NSWSC 785.

1. The underlying facts in these proceedings, and those proceedings, are the same, although the roles played by the defendants in that matter and by the Company here are different, as is the capacity in which they are being convicted. Accordingly, there will be a degree of overlap between that judgment and this judgment.

Principles of Sentencing

1. In sentencing the Company for the offence here, I need to keep in mind that the purposes of sentencing include that the Court is to ensure that an offender is adequately punished for their offence so as to denounce their offending conduct, to recognise the harm done to the victim of the crime in the community, and to make the offender accountable for its actions. As well, it is necessary to impose a sentence to prevent crime by deterring the offender and other persons from committing similar offences, thereby protecting the community from being put at risk. To the extent it is possible, one purpose of sentencing is to promote the rehabilitation of the offender: see s 3A of the Crimes (Sentencing Procedure) Act 1999.

1. In any one case, these purposes may be in tension or conflict, and cannot be considered separately or in isolation from one another. These purposes for the imposition of a sentence do not rank in any order of priority. The Court is obliged to have regard to all of these purposes in considering the appropriate sentence.

1. Given the nature of the offence, the fact that it involved the consignment of goods which were dangerous and required careful and adequate restraint whilst being transported, and that the transport of the goods occurred on a public road, the principle of general deterrence must play an important role in any sentence which is imposed. The consigning of goods requiring proper restraint upon heavy transport vehicles on public roads in NSW is a very common occurrence. Unless such goods are properly and adequately restrained, then there is a risk to all users of public roads in NSW. Proper and adequate load restraint promotes and enhances road safety. Accordingly, any sentence imposed on the company must be one that will operate as a general deterrent for other consignors of goods for carriage on the public roads of NSW.

The Facts

1. The prosecutor and the Company have agreed upon a Statement of Facts, which generally describes the conduct of the defendant and also the other parties involved in the facts and which constitute the offence in question.

1. As one might expect, the Statement of Facts agreed to in this case, which I accept as a reasonable set of facts, carries considerable overlap with the Statement of Facts I accepted in the Doble matter, and which I have there set out at [14]. However, I will set out the facts that I accept in the circumstances of this case so that the facts on which this sentence is based can be readily identified.

1. The facts which I accept and which relate to the offence are as follows:

"1. At about 10:30 am on 3 May 2011, a combination motor vehicle (combination vehicle) comprising a Volvo rigid truck, NSW registration WSS-385 (truck) and a single axle trailer, NSW registration K69126 (trailer) was involved in an incident on the Lue Road, a two-lane highway near Mudgee in the State of New South Wales.

2. The combination motor vehicle had a gross laden weight that exceeded 2.5 tonnes.

3. At the time of the incident, the trailer was carrying 5 empty or near-empty bulk compressed nitrogen gas cylinder packs, known as Maxi-8s (Maxi-8 cylinder packs). Each Maxi-8 cylinder pack consisted of a metal pallet that measured 197 cm high, 97cm wide and 47cm deep that contained 8 gas cylinders. Also, each Maxi-8 cylinder pack, when empty or near empty of industrial gas, weighed approximately 700kg. The base of each Maxi-8 cylinder pack consisted of two strips of steel, separated by a central channel, with some rust present.

4. During the course of the incident the trailer broke free from its coupling with the truck and rolled onto the other side of the road. A portion of the trailer and one of the Maxi-8 cylinder packs collided with a Mazda motor vehicle travelling in the opposite direction. The sole occupant and driver of the Mazda motor vehicle died at the scene as a result of injuries sustained in the collision.

5. Air Liquide Australia Limited (the defendant) was a consignor of the 5 Maxi-8 cylinder packs within the meaning of paragraph (b)(i) of the definition of "consignor" in s 20 of the Road Transport (General) Act 2005 by reason of its engagement of the operator of the truck and trailer, Doble Express Transport Pty Ltd (Doble Express) in the circumstances described further below.

Doble Express Transport and Timothy Webber

6. At the time of the incident, Doble Express was the registered owner and operator of the truck and trailer. Doble Express operated the heavy combination in the course of its business as a general transport company, which includes the operation of combination vehicles in the transport of goods by road. Doble Express has carried on that business since its incorporation in 1984.

7. Timothy Webber (Webber) was the driver of the heavy combination. ...

...

The defendant

10. The defendant was incorporated on 14 August 1957.

11. At the time of the incident the defendant was carrying on business as a supplier of industrial gases. The defendant had carried on that business since its inception in 1957.

12. At time of the incident the defendant supplied industrial gases, including compressed nitrogen in Maxi-8 cylinder packs.

...

16. The Maxi-8 cylinder packs being carried on the trailer at the time of the incident were the property of the defendant.

17. Pursuant to a Cylinder Service and Supply Agreement dated 2 January 2007, the defendant supplied to Robert Oatley Vineyards (Oatley) industrial gases, including compressed nitrogen gas, for use in the wine making process. The compressed nitrogen gas was ordinarily supplied in Maxi-8 cylinder packs. The defendant charged Oatley for the gas supplied, together with a rental fee in respect of the Maxi-8 cylinder packs, which remained at all times the property of the defendant.

18. As with all of the defendant's industrial customers, the usual course of business with Oatley involved a representative of Oatley contacting the defendant and placing an order with its customer service officer. This involved the Oatley representative providing the defendant's customer services officer with information concerning the type of product and quantity to be supplied and information concerning the number of "used" or "empty" cylinder packs to be returned. The defendant's customer service officer then entered the information into the defendant's computer system to generate an order.

19. Once an order had been generated on the defendant's computer system, a scheduler organised for the delivery of the product and collection of the used or empty cylinder packs.

...

22. From about December 2007, the defendant engaged Doble Express from time to time to conduct the delivery of its products by road to Oatley and the collection and return of used or empty gas cylinder packs by road to the defendant. On the records presently available, in the two year period prior to the Incident the defendant engaged Doble Express to attend at Oatley on approximately 10 occasions.

23. Doble Express was not the defendant's usual carrier and there was no formal written agreement governing the arrangements concerning the provision by Doble Express of its services in the carriage by road of the defendant's products and gas cylinders.

...

25. The defendant did not provide any written directions or instructions to Doble Express concerning the method of securely restraining gas cylinder packs to the performance standards provided in the Load Restraint Guide.

26. The defendant could have provided Doble Express with information and instructions with respect to the restraint of the Maxi-8 cylinder packs of the kind set out in the ANZIGA Guidelines 3 and/or the Air Liquide Shared Standard Operating Procedure: Transportation of Products in Non-Dedicated Vehicles.

...

The Oatley order and consignment

32. On 29 April 2011, the defendant received an order from Oatley for the delivery of one Maxi-8 cylinder pack and the return of 5 Maxi-8 cylinder packs. As the next run to the Mudgee area by the defendant's preferred carrier was not due to occur in the immediate future, an Air Liquide representative contacted Doble Express by telephone with a view to engaging Doble Express to deliver the single Maxi-8 cylinder pack on 2 May 2011 to Oatley and pick up the 5 Maxi-8 cylinder packs to be returned to the defendant.

33. Doble Express did not attend the defendant's depot at Fairfield to collect the necessary consignment documentation (including the dangerous goods manifest) or the single Maxi-8 cylinder pack to be delivered to Oatley prior to 3 May 2011.

...

35. At about 9:20 am, Webber arrived at Oatley's Poets Corner Winery and spoke with a worker, Mr Nathan Woolley. Under the direction of Webber, Mr Woolley loaded 5 of the defendant's Maxi-8 cylinder packs onto the trailer using a forklift. Four Maxi-8 cylinder packs were loaded firmly against each other and centrally across the front of the trailer, immediately adjacent to the headboard. The remaining Maxi-8 cylinder pack was loaded centrally across the rear of and immediately adjacent to the four Maxi-8 cylinder packs.

36. Neither Webber nor Mr Woolley placed any material between the base of the Maxi-8 cylinder packs and the slightly rusted unpainted checkerplate steel deck of the trailer.

37. The location of the 4 Maxi-8 cylinder packs centrally against the headboard of the trailer was such that there was a 25cm gap between the outer edge of the packs and the raised combing located on either side of the metal tray of the trailer.

38. Webber restrained the 5 Maxi-8 cylinder packs using a single 2,500 kg synthetic ratchet strap, which was strapped around the outside of the Maxi-8 cylinder packs with each end of the ratchet strap being secured to two steel uprights of the trailer headboard. Webber then put in place and secured the trailer's 2 metal side gates.

39. The manner of restraint of the load by Webber did not satisfy the performance standards recommended in the Load Restraint Guide. This is because:

(a) The use of one strap to secure the load to the headboard of the trailer was inadequate to safely secure and restrain the load;

(b) The configuration of the Maxi-8 cylinder packs and the points at which the ratchet strap was attached to the headboard was such that it increased the risk of lateral movement of the load during transport; and

(c) There was no anti-slip material placed underneath the load to increase the co-efficient of friction between the load and the surface of the trailer and reduce the risk of lateral movement of the load during transport.

40. As consequence of the method of restraint adopted, the restraint of lateral or sideways movement of the load was limited to .21G; or 40 per cent of the minimum of .5G specified by the performance standards set out in the Load Restraint Guide.

41. The manner of restraint was such that a shifting of the load was imminent. This involved an appreciable risk to public safety.

42. As well, because of the inadequacy of the restraint and the imminent risk of the load being dislodged from the trailer, there was an appreciable risk of harm to road infrastructure and, if a collision occurred, an increase in traffic congestion, with an associated loss in public amenity.

...

44. At about 10:20 am, Webber was driving the truck and trailer at approximately 90 km per hour in a generally easterly direction on Lue Road, about 15 km away from Mudgee. A short distance past the Hayes Gap turn, as Webber negotiated a right hand kink in the road, the Maxi-8 cylinder packs shift towards the passenger side of the trailer.

45. A short time later, as Webber was negotiating a left hand bend on Lue Road, the Maxi-8 cylinder packs shifted towards the driver's side of the trailer. The trailer dipped towards its driver side and the passenger side tyre of the trailer lifted from the roadway. As a consequence of the movement of the Maxi-8 cylinder packs on the trailer, the passenger side of the trailer continued to rise causing stress on the tow coupling and safety chains between the truck and trailer, which failed as the trailer overturned and flipped into the oncoming lane of Lue Road.

46. In the course of the trailer overturning, the 5 Maxi-8 cylinder packs were dislodged from the trailer."

1. As these facts show, it is clear that the load was not properly secured and that it was the defective securing which was the direct cause of the accident in question, and the death of the driver of the motor vehicle travelling in the opposite direction to the truck operated by Doble Express.

1. It is necessary to understand what the facts were surrounding the Company's engagement of Doble Express to undertake this task, and how it came to be that the securing and restraining of this load was so defective.

1. According to the Agreed Statement of Facts, the usual course of business between the Company and Robert Oatley Vineyards ("Oatley") was that an employee of Oatley would place an order with the Company for a supply of gas cylinders. Naturally the type of product and the quantity to be supplied would be provided. As well, the Oatley employee would provide the Company with the number of used or empty cylinder packs which were to be returned to the Company.

1. The Company did not ordinarily use Doble Express, but did so from time to time. The arrangement with its usual carrier under a national agreement, was that the usual carrier has been provided by the Company with tray bodies that are specially configured to carry gas cylinders, and which are readily able to provide proper load restraint.

1. Generally, the course of events is that the Company required any of the transport providers to attend at the Company's depot to first collect the full cylinders of gas to be delivered to a customer. At that point, the transport provider is given the necessary consignment documentation relating to both the goods for delivery and the goods for collection from the customer, which are then returned back to the Company's depot.

1. The collection of the consignment documentation from the Company's depot was a central feature of the usual process. There were good reasons for the process. First, it meant that the transport provider had been authorised to receive and carry the property of the defendant, and it provided the customer with a record of the delivery and collection of the defendant's gas cylinder products. Secondly, the Dangerous Goods (Road and Rail Transport) Regulation 2009 ("Dangerous Goods Regulation") requires all drivers of vehicles carrying dangerous goods, which these gas cylinders were, whether empty or full, to carry transport documentation for the goods at all times.

1. The third benefit of the process which required the transport company to first attend the Company's depot to collect the full cylinders was that the officers of the Company could observe the nature of the vehicle or combination which was to be used, whether the vehicle or combination were fit for the purpose of transporting the gas cylinders, whether the transport provider had available to it the Company supplied cradles, or similar cradles which were suitable for transporting gas cylinders, and generally enabled the Company to exercise some control and influence over the way in which goods were to be transported.

1. Although Doble Express was not the usual carrier, it is agreed between the parties that, typically, this process was followed by Doble Express. It usually collected the Company's products from the Company's depot using a tri-axle caged/taut line semi-trailer or, alternatively, occasionally an appropriately caged rigid truck.

1. It is also agreed between the parties that Doble Express had never attended any of the Company's depots with the vehicle used on the day in question, configured as it was with a single axle trailer. The parties agree that as part of the loading procedure adopted at the Company's Fairfield depot, the usual place of collection of full cylinders, a single axle trailer without appropriate headboard and restraints would have been rejected for carriage of the Company's gas cylinder packs, because it was unsuitable to carry such a load.

1. It is clear from the agreed facts that here, the usual procedure was not followed, and that the Doble Express truck attended first at the Oatley vineyard to collect the empty gas cylinders, and did not first attend the Company's premises.

1. The consequence of this was that the Company was unaware that the gas cylinders were being transported, because no consignment note or other documentation had been issued by it for the actual transport. The Company was, of course, aware that it had placed an order with Doble Express to deliver the full gas cylinders to and to collect the empties from Oatley.

1. The factual agreement between the parties was expressed in these terms:

"47. Some time shortly after the incident, a representative of Doble Express contacted the defendant's depot at Fairfield and requested a copy of the consignment documentation relating to the 5 Maxi-8 cylinder packs. The Doble Express representative advised that there had been an accident involving the truck and trailer carrying the 5 Maxi-8 cylinder packs. This was the first time the defendant was made aware that Doble Express had attended the winery and collected the 5 Maxi-8 cylinder packs, which was unexpected because the consignment documentation had not been created and the single Maxi-8 cylinder pack had not yet been collected from the Fairfield depot in accordance with the usual procedure. At about that same time a Doble Express driver arrived at the defendant's Fairfield depot to collect the consignment documentation and the single Maxi-8 cylinder pack to be delivered to Oatley."

1. Although Doble Express was described as being the occasional transport provider used, as opposed to the regular transport provider, the evidence discloses that in the 18 months leading up to the incident which gives rise to the offence, the Company retained Doble Express on no less than 10 occasions to carry out deliveries specifically to the Oatley Vineyards at Mudgee.

1. The agreed facts did not reveal the order in which Doble Express carried out the consignor's instructions on those occasions. That is to say, whether, in accordance with the usual process, Doble Express collected the full cylinders first at the Company's Fairfield depot, and then returned the empty cylinders to that depot, or whether it followed the procedure which was used on this occasion, was not revealed.

1. It was accepted by senior counsel for the Company that the load restraint breach was a severe breach with many of the consequences to which s 60 of the RTG Act refers.

Specific Statutory Provisions

1. It is necessary to have regard to some provisions of the RTG Act, and also the Crimes (Sentencing Procedure) Act. It is convenient to deal with those at this stage.

1. Section 60 of the RTG Act, where a severe risk breach is involved, requires the Court to take into account a number of matters including an appreciable risk of harm to public safety, a serious risk of harm to road infrastructure and a serious risk of harm of increased traffic congestion. I will keep these matters in mind. It is necessary to observe that the consideration of these matters requires attention to them in addition to the matters set out in s 3A of the Crimes (Sentencing Procedure) Act, namely the purposes for which a court can impose a sentence, and also, s 21A of that Act, which provides for aggravating and mitigating factors to be taken into account when a court imposes a sentence: The Roads and Traffic Authority of NSW v Fletcher International Exports Pty Ltd [2008] NSWSC 936; (2008) 51 MVR 41 at [40] per Price J.

1. Here, in the circumstances involving the specific severe risk breach of the load restraint requirements, I am satisfied that there was an appreciable risk of harm to public safety. This is manifestly demonstrated by what in fact occurred, namely the death of an innocent road user. Because the truck was at risk of, and did overturn spilling its load, there was a serious risk of harm to the road infrastructure. It is fortunate that other road infrastructure such as bridges, underpasses and the like were not damaged; as well the traffic accident in fact caused a serious risk of traffic congestion. This was also clearly to be anticipated.

1. Some of the specific provisions of s 21A of the Crimes (Sentencing Procedure) Act must also be taken into account.

1. Section 21A(2) of the Crimes (Sentencing Procedure) Act sets out various matters which, if relevant in respect to any particular offence, are to be regarded by a court as aggravating factors to be taken into consideration when imposing a sentence. Here, the prosecution did not suggest that the Court ought have specific regard to any of the aggravating factors set out in this provision.

1. Section 21A(3) of the Crimes (Sentencing Procedure) Act requires the Court to have regard to particular factors, if they exist, as mitigating the offence. The prosecution concedes that the Company does not have any record of relevant previous convictions. This is a mitigating factor: s 21A(3)(e).

1. The Company submitted that it was remorseful and was unlikely to re-offend. If these matters are established by the evidence, then they can be taken into account when considering the appropriate penalty: s 21A(3)(g) and s 21A(3)(i).

1. The plea of guilty is also a mitigating factor to be taken into account: s 21A(3)(k). It will be necessary to discuss this further in due course.

1. A further statutory provision to which the Court is required to have regard when imposing a fine on a company, is s 6 of the Fines Act 1996. That section requires the Court to consider such information as is provided about the means of the Company to pay the fine. The Company is a large one which has been in existence in Australia since 1957. It is part of a worldwide group called "Air Liquide Group" which operates in 80 countries, and has approximately 50,000 employees. In Australia, at the time of the incident, the Company employed approximately 322 people and had offices in many regional locations, although it was based in Melbourne. Although there is specific financial information put before the Court, there is no suggestion that it has any lack of capacity to pay any fine which may be imposed.

1. Accordingly, it is unnecessary for the Court to consider whether it ought moderate any fine otherwise to be imposed because of the financial circumstances of the Company.

Plea of Guilty

1. Section 22 of the Crimes (Sentencing Procedure) Act obliges a court to take into account when passing sentence on an offender, the fact that the offender has pleaded guilty, when the offender pleaded guilty or indicated an intention to plead guilty, and the circumstances in which the offender indicated an intention to plead guilty. The section provides that, having taken those matters into account, a court may "... impose a lesser penalty than it would otherwise have imposed". There is no statutory obligation on a court to reduce the penalty which it might otherwise have imposed.

1. However, a court cannot impose a lesser penalty which is unreasonably disproportionate to the nature and circumstances of the offence: s 22(1A) Crimes (Sentencing Procedure) Act.

1. The discount to be applied is for the utilitarian value of a plea to the administration of justice in New South Wales, and is determined largely by the timing of the plea, so that the earlier the plea, the greater the discount: R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 at [154]; R v Forbes [2005] NSWCCA 377 at [117]; R v Borkowski [2009] NSWCCA 102 at [32].

1. These proceedings were fixed for hearing on 19 September 2013, together with the other proceedings arising out of the same incident. They were fixed for a contested hearing by the Court for a period of 10 days. That estimate was intended to cover all of the matters.

1. The plea, delivered as this one was, just a few days before the proceedings were due to commence, is not, and cannot be regarded as, an early plea.

1. So far as this Company is concerned, it was alleged to be liable by reason of its role as the consignor. It had to determine whether the provisions of s 88 of the RTG Act provided it with a defence. Once that determination was made, and here as is apparent from the plea, that defence was not regarded as being available, the entry of a plea was not a complex matter. Shortly put, the plea was a late plea in a relatively uncomplicated matter where the Company had more than adequate time from the commencement of the proceedings in May 2013 to determine its position.

1. There was little utilitarian value in the plea because, by the time the Court was notified of the plea, it was quite unable to re-allocate the time set aside and which would have been taken for dealing with the defended hearing in this matter, so far as it related to the Company.

1. Having regard to the fact that the plea was late, I would assess the utilitarian value of the plea of guilty as being very low. In all of the circumstances, it is not appropriate to allow any discount to reflect that late entry of the plea of guilty.

Likelihood of Re-offending

1. Senior counsel for the Company submitted that there was no likelihood of the Company committing any further offence of the kind here charged.

1. He relied upon the evidence of Mr Philippe Adam, the Industrial Merchant and Technical Manager in the Company's employ, as to the changes and responses to this incident as the support for a finding of the kind for which he contended.

1. It is to be recalled that the accident occurred on 3 May 2011. Proceedings were commenced against the Company about two years later.

1. After, but not before, the proceedings were commenced, the Company established a "national working group" to address the "chain of responsibility" obligations of the Company. That group now meets approximately once every month. After each meeting, minutes or actions arising from the meeting are circulated to the members of the working group and to the "regional supply chain organisations".

1. One of the goals of the chain of responsibility working group was to reduce the number of third party transport carriers which the Company engaged in NSW. As a consequence, the Company now only engages two third party transport carriers, and no longer engages Doble Express.

1. As well, the Company has engaged in a structured safety and risk management process which is used to measure, on a monthly basis, the Company's performance and its management in three basic areas dealing with its chain of responsibility obligations.

1. The key performance indicators for the risk management system include producing an audit package to be used on third party carriers, and auditing those carriers for compliance with the relevant legislation.

1. Mr Adam says that as part of this audit program, the Company has performed an audit on the two third party carriers used in NSW. The outcome of those audits is not revealed by the evidence.

1. As well, the Company provides online induction training for third party carriers and customers, it engages third party carriers through a contractual mechanism which obliges them to comply with the Company's guidelines and procedures, and third party carriers are obliged to implement industry-approved load restraint guidelines. As well, cylinders and packs of cylinders are labelled so as to remind all transporters of their loading obligations.

1. The Company submits that each of these steps ought reduce the likelihood of any further offending with respect to load restraint breaches.

1. They are commendable steps, which stand to the credit of the Company. It is, of course, impossible to say with any confidence, having regard to the complexity of the Company's operations, that there will be no like offence in the future, but these measure should go a significant distance towards preventing future like offences.

Remorse

1. If a defendant has shown remorse for its offence, then s 21A(3)(i) of the Crimes (Sentencing Procedure) Act permits that to be taken into account as a mitigating factor.

1. There is no evidence before me in which there has been any expression of remorse shown by the Company other than by the entry of its plea of guilty, and such assistance as it has provided to the investigating authorities. In the circumstances here, the mere entry of a plea of guilty and provision of assistance to the authorities do not constitute any demonstration of remorse.

1. The absence of an expression of remorse does not aggravate the offence, and is not an aggravating factor to be considered in sentencing the Company. However, the absence of an expression of remorse means that there is no mitigating factor available to the Company in this case.

Seriousness of the Offence

1. It is appropriate to make an assessment of the seriousness of the offence and the offending conduct of the Company. This assessment arises from the nature and circumstances of the offence: Muldrock v R [2011] HCA 39; (2011) 244 CLR 120 at [27].

1. There is no doubt that the breach of the load restraint requirement was a severe breach. And there is no doubt that that breach occurred in circumstances which involved serious risk to innocent road-users, and which resulted in the death of an innocent road-user.

1. The Company is not to be sentenced because it's conduct constituted the severe breach of the load restraint requirements. Rather, it is being sentenced as a consignor of the load which was not adequately restrained.

1. The facts are clear that the Company did not know that the empty gas cylinders had been collected by Doble Express from Oatley. It was unaware that the load was inadequately restrained. It did not have, directly, an opportunity of controlling the way in which the load was restrained.

1. Those circumstances are a feature, but not the entirety, of the Company's conduct with respect to this offence. The statutory provisions make a number of parties who are responsible for the consigning of goods by road transport, liable in the event of breaches of the relevant regulations.

1. The so-called chain of responsibility legislation, was introduced into the Parliament in 2004. In the Second Reading Speech in the Legislative Assembly, on 8 December 2004, the responsible Minister identified the "evil" to which the legislation was addressed. He said:

"This legislation has been developed to achieve a number of outcomes: to extend accountability to parties in the road transport supply chain other than the driver and transport operator who may bear significant responsibility for the occurrence of an offence, ...; and to encourage parties to the road transport task to adopt risk management strategies to prevent breaches of applicable road laws. The main focus of the bill is to improve compliance with loading, mass and dimensions requirements as well compliance with fatigue and driving hours obligations. ... An important concept in the new provisions is the extensive chain of responsibility requirements. Under the chain of responsibility, prescribed parties including consignors, packers, loaders or consignees of goods, drivers and operators of vehicles who had control over a step in the process of distributing goods by road may, in relevant circumstances, be legally liable for breaches of road transport laws.

The provisions recognised that to date, drivers and operators have generally been the focus of enforcement action for breaches of road transport law. Under this new regulatory framework, those other parties in the transport chain, may also be committing an offence and liable to substantial penalty. In practical terms, this means it is essential that all parties in the supply chain need to be aware of the requirements of road transport law, and have active systems in place to manage these risks to minimise the chance of road transport laws being breached."

1. The terms of the RTG Act, for consignors in the position of the Company here, that they will not be guilty of an offence involving the load restraint provision if the Company establishes that it did not know and could not reasonably be expected to have known of the contravention concerned, and further that it took all reasonable steps to prevent the contravention, or, alternatively, there were no steps that it could reasonably be expected to have taken to prevent the contravention: see s 88 RTG Act.

1. As senior counsel for the Company conceded, its plea of guilty to the offence recognised that there were steps that it could reasonably have taken with respect to ensuring that the load was adequately restrained.

1. Senior counsel conceded that the Company could have provided Doble Express with particular instructions or directions as to how the load should be restrained so as to comply with the standards in the load restraint guide. He submitted that, having regard to the facts and circumstances as to what occurred, it is unlikely as a matter of practical reality that any such steps would have ensured that the load restraint breach did not occur.

1. I accept that this is one way in which the conduct of the Company constitutes a breach of the legislation, in the sense that it was a reasonable step which the Company could have, but did not take.

1. It is not the only reasonable step. It seems to me that the Company had a range of other steps and measures that it could have taken as a consignor to ensure that Doble Express complied with the load restraint requirements. These may include some of the steps that the Company took after the events in question. None of those steps were of a kind that could not have been taken before the incident. Rather, the Company was prompted to take those steps, not by the chain of responsibility legislation being introduced, as it should have been, but rather after the incident occurred, and because of it.

1. I accept that it is not at all uncommon, as a matter of human experience, that the occurrence of an event will make more obvious the existence of risks which need to be properly managed. However, once the legislation had been introduced, it was for consignors, including this Company, to identify the risks and actively introduce systems to manage those risks.

1. As well, another way the Company could have, but did not, act was in the event that the Company chose to use non-regular carriers, its contractual documentation could have set out the basis of the carriage including the ordinary systems of pick up and delivery, and making plain the obligations of the carrier with respect to load restraint and, including, as a condition that, where default occurred, the carrier would not be remunerated. Such contractual obligations would no doubt have a real deterrent effect upon the carrier that was engaged so as to ensure compliance with the obligations.

1. The Company could have, but did not, engage the customer, here the Oatley vineyards, in its quest to ensure safe transport of the cylinders. There are other steps, of a commercial kind, which it could have, but did not take.

1. As this Company has not been guilty of any previous offence against this legislation and, as the evidence shows, is regularly engaged as the consignor for road transport of both full and empty gas cylinders, the Court can take some comfort from the fact that such systems as it did have in place must have been reasonably effective.

1. But the legislation is strict liability legislation, and it requires constant attention to the obligations of risk management when goods are consigned. This is particularly so when the goods which are being consigned, as here, are dangerous goods, and goods which require specific attention to loading and restraint requirements.

1. Concentrating on the conduct of the Company, it seems to me that this is an offence that can properly be categorised as being at the lower end of seriousness with respect to this particular legislation.

1. Any penalty which I impose will reflect this finding.

Penalty

1. Senior counsel for the Company submitted that I should proceed in accordance with s 10 of the Crimes (Sentencing Procedure) Act, and dismiss the charge without proceeding to a conviction. Whilst the prosecutor accepts, as a matter of law, that it would be open to the Court to proceed under s 10, he submits that it is inappropriate in the circumstances of this case.

1. Taking account of all of the factors to which I have referred, including importantly that this offence involves criminality at the lower end of the scale, it seems to me that a fine is appropriate.

1. I am not prepared to proceed in accordance with s 10. I do not think that this is a trivial offence. On the contrary, it is an offence against a provision, the purpose of which is to ensure the safety of road users. True it is that the criminality of the Company is at the lower end of the range of seriousness for this offence, but that does not make this offence trivial. Nor do I think it would accord with the purposes of sentencing and, in particular ensuring general deterrence, for this Court to proceed to dismiss this charge as submitted.

1. In my view, it is necessary for the purpose of general deterrence, and to denounce the conduct of the offender, for the Court to impose a fine.

1. In my view, a proper fine is one of 20 per cent of the maximum, namely 50 penalty units.

Sentence and Orders

1. I make the following orders:

(1) I convict Air Liquide Australia Ltd of an offence contrary to s 53 of the Road Transport (General) Act 2005.

(2)   With respect to that offence, I impose a fine of $5,500.

(3)   I order Air Liquide Australia Ltd to pay the prosecutor's costs in a sum which is to be agreed or which is to be assessed.

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Decision last updated: 05 September 2014