Kemp v Doble, Kemp v Doble Express Transport Pty Ltd
[2014] NSWSC 785
•19 June 2014
Supreme Court
New South Wales
- Summary available
Medium Neutral Citation: Kemp v Doble, Kemp v Doble Express Transport Pty Ltd [2014] NSWSC 785 Hearing dates: 10/06/2014 Decision date: 19 June 2014 Before: Garling J Decision: In proceedings number 2013/135912:
(1) I convict Doble Express Transport Pty Ltd of an offence contrary to s 56(1) of the Road Transport (General) Act 2005.
(2) With respect to that offence, I impose a fine of $24,750.
In proceedings number 2013/135839:
(3) I convict Graeme John Doble of an offence contrary to s 178 of the Road Transport (General) Act 2005.
(4) With respect to that offence, I impose a fine of $4,400.
Catchwords: CRIMINAL LAW - summary jurisdiction - offences under Road Transport (General) Act 2005 - offence by company as an operator - offence by company director in respect of offence by operator - breach of load restraint requirements - both defendants plead guilty
CRIMINAL LAW - sentencing - Road Transport (General) Act 2005 - severe risk breach - statutory requirements on sentencing - appreciable risk of harm to public safety - serious risk of harm to road infrastructure - serious risk of traffic congestion - aggravating factors - seriousness of loss caused by offence - mitigating factors - lack of relevant previous convictions - penaltyLegislation Cited: Crimes (Sentencing Procedure) Act 1999
Fines Act 1996
Road Transport (General) Act 2005Cases Cited: Kemp v KGB Protective Coatings Pty Ltd [2014] NSWSC 586
Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
R v Borkowski [2009] NSWCCA 102
R v Forbes [2005] NSWCCA 377
R v Thomson & Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383
R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
Roads & Traffic Authority NSW v Fletcher International Exports Pty Ltd [2008] NSWSC 936; (2008) 51 MVR 41Category: Principal judgment Parties: Peter Stewart Kemp (Prosecutor)
Doble Express Transport Pty Ltd (Defendant)
Graeme John Doble (Defendant)Representation: Counsel:
Mr M Cahill (Prosecutor) (in both matters)
Ms J Healey (Defendants) (in both matters)
Solicitors:
Sparke Helmore Lawyers (Prosecutor)
Maguire & McInerney (Defendants)
File Number(s): 13/135912, 13/135839
Judgment
On 2 May 2013, Peter Stewart Kemp, the prosecutor, commenced proceedings against Doble Express Transport Pty Ltd ("the Company"), alleging that it had committed, as an operator, an offence under s 56 of the Road Transport (General) Act 2005 ("the RTG Act").
On 6 June 2014, counsel for the Company indicated to the Court that it proposed to plead guilty to that offence, when the proceedings were listed for hearing on 10 June 2014. On that day, a plea of guilty was entered.
On 2 May 2013, the prosecutor filed a Summons alleging that Graeme John Doble ("Mr Doble") was guilty of an offence pursuant to s 178 of the RTG Act in respect of an offence by an operator under s 56 of that Act.
On Tuesday 10 June 2014, counsel for Mr Doble entered a plea of guilty to that offence.
The sentencing proceedings were heard together. The evidence in each proceeding was the evidence in the other proceeding. It is convenient to deal with both matters in the one judgment, because of the commonality of facts.
The Company and Mr Doble now stand to be sentenced for these offences. The maximum penalty for each of these offences is determined by reference to the categorisation of the offence, or in the case of Mr Doble, the underlying offence, as being minor, substantial or severe, as those terms are used in s 59 and s 60 of the RTG Act.
Here, each of the prosecution, the Company and Mr Doble, agree that each of these offences is properly to be categorised as involving a severe breach of the statutory requirements. Accordingly, the maximum fine that can be imposed with respect to the Company for its offence is 250 penalty units, which amounts to $27,500. The maximum fine that can be imposed for Mr Doble for his offence is 50 penalty units, which amounts to $5,500.
In the matter of Kemp v KGB Protective Coatings Pty Ltd [2014] NSWSC 586, at [6]-[8], I had occasion to draw attention, in the context of that prosecution to the fact that the penalties fell within the jurisdictional limit of the Local Court of NSW. I repeat the remarks that I there made about the inappropriateness of the use of the summary jurisdiction of the Supreme Court for offences of the kind here being dealt with.
Principles of Sentencing
The imposition of a sentence in this case calls up both the common law principles relating to sentencing, and also a variety of statutory provisions.
The Parliament of NSW has set out the purposes for which a court may impose a sentence on an offender including a company. Section 3A of the Crimes (Sentencing Procedure) Act 1999 provides that those purposes are:
(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.
It is self-evident that these purposes overlap, may be in conflict, and cannot be considered in isolation, one from the other, in their application to a particular case. These purposes do not rank in any order of priority. The Court is obliged in imposing these sentences to have regard to these purposes.
The terms of s 21A(1) of the Crimes (Sentencing Procedure) Act, mean that the Parliament has preserved the entire body of judicially developed, or common law, sentencing principles: R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 at [56]-[57], Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [18]. These common law principles have been developed over time by courts to provide guidance for the exercise of the sentencing discretion by every judge.
This is a case where, given the nature of the offence, the fact it involved a heavy transport vehicle and occurred on a public road and the principle of general deterrence, must play an important but proportionate, role. In these circumstances the condign punishment of the Company will operate as a general deterrence for other companies which operate heavy vehicles for transport on the public roads of NSW from committing breaches of transport legislation, in particular of load restraint requirements, and thereby enhance road safety. It should also serve as a deterrent for any person who is a director of such a company.
The Facts
The prosecutor, and each of the Company and Mr Doble, have agreed upon a Statement of Facts which generally describe the conduct of each of the defendants, the offences and their consequences. I am not bound to accept these facts, however, in this case, upon the basis of such material as has been tendered, I do so. The facts, which I accept and which relate to the time of the offences, are set out below:
"1. At about 10.20am on 3 May 2011, a combination motor vehicle, consisting of a Volvo rigid truck, NSW Registration K69126, and a single axle "pig" trailer, NSW Registration K69126 (the trailer) [together referred to as 'the combination'], was being driven in a generally eastern direction along Lue Road, approximately 15 km from Mudgee in the State of NSW.
2. At about the said time and place the trailer was loaded with 5 bulk industrial gas cylinder packs, known as Maxi 8s.
3. At about the said time and place, the trailer flipped onto the path of oncoming traffic.
4. A portion of the trailer and at least one of the 5 Maxi 8s collided with a Mazda wagon being driven by Ms Jane Mersing.
5. Ms Mersing died at the scene as a result of injuries sustained in the collision.
6. Doble Express Transport Pty Limited ACN 002 751 751 (DXT) was incorporated on 6 August 1984.
...
8. Mr Graeme John Doble was appointed a director of DXT on 15 May 1984.
9. Mr Graeme John Doble is and was at all material times a director of DXT.
...
11. At all material times the issued share capital in DXT consisted of two $1.00 "Ordinary Shares".
12. Graeme John Doble is and was at all material times the beneficial owner of one Ordinary Share issued in DXT.
...
17. DXT carries on, and carried on, business as a general transport company. The carrying on of this business includes the operation of combination vehicles, in the transport of goods by road.
18. DXT was the operator of the combination ...
19. DXT employed Timothy James Webber as a driver.
20. As at May 2011, Mr Webber had been employed by DXT as a driver for approximately three years.
21. Mr Webber was the holder of an unrestricted HC [Heavy Combination] Class driver's licence.
22. Mr Webber was assigned by DXT to operate the combination in the transport of goods by road.
...
29. Air Liquide supplied industrial gases, in particular nitrogen gas, in bulk cylinder packs known as "Maxi 8" packs (Maxi 8s).
30. Maxi 8s consisted of:
(i) a metal, caged pallet (pallet) that measured:
· 197cm high;
· 97cm wide; and
· 47cm deep
(ii) 8 connected gas cylinders.
The base of each Maxi 8 was smooth metal.
31. Each Maxi 8 was marked with an "average gross weight" of "920kg" and a "safe working load" weight of "920kg".
32. A Maxi 8, when the 8 gas cylinders were "empty" of gas, had an average gross weight of approximately 700kg.
33. On 2 January, 2007 Air Liquide and Robert Oatley Vineyards Pty Limited (ROV) executed a Cylinder Service and Supply Agreement, for an initial term of five years, pursuant to which ROV agreed to purchase from Air Liquide and Air Liquide agreed to supply ROV with its total industrial gas requirements. The Cylinder Service and Supply Agreement included the supply of gaseous nitrogen by Air Liquide to ROV at its premises located on Henry Lawson Drive at Mudgee (the winery).
34. Commencing in about 2008, Air Liquide retained the services of DXT in relation to the delivery by road, from time to time, of gaseous nitrogen, contained in cylinders to the winery and the collection of empty gas cylinders from the winery.
35. There was no written contract between Air Liquide and DXT in relation to the provision by DXT of its services in the delivery by road of cylinders of gaseous nitrogen to ROV and the return of empty gas cylinders from ROV by road to Air Liquide.
36. Air Liquide did not provide any written instructions, written directions and/or written guidelines to DXT in relation to the transportation by road of its gas cylinders, whether full or empty, including the transportation by road of bulk packs of gas cylinders supplied by Air Liquide and known as Maxi 8s.
37. On or about 14 April, 2011 ROV ordered delivery of one Maxi 8 of nitrogen from Air Liquide to the winery and requested the collection of five empty Maxi 8s from the winery for return to Air Liquide.
....
40. On or about 29 April, 2011, ... Air Liquide, placed two orders with DXT in relation to:
(i) the delivery of one Maxi 8 of gaseous nitrogen to the winery; and
(ii) the collection from the winery of five Maxi 8s that were empty of gas for return to Air Liquide.
....
42. On 3 May, 2011, in the course of his employment with DXT, Mr Webber was assigned to drive the combination on the transport run comprised in DXT runsheet number 45829.
43. The DXT transport run comprised in DXT runsheet number 45829 included the collection of five Maxi 8s from "Oatley Family Wines, Henry Lawson Drive, (Poet's Corner Winery) Mudgee NSW 2850" for return to Air Liquide under DXT pickup reference number PU4097.
44. At about 9.20am on 3 May, 2011 Mr Webber drove the combination into the winery.
45. On the arrival of the combination at the winery:
· the truck contained a small amount of general freight; and
· the trailer was empty.
46. On the arrival of the combination at the winery five Air Liquide Maxi 8s, empty of gas, were available to be collected by Mr Webber for return by road to Air Liquide.
47. Under Mr Webber's direction the five Maxi 8s were loaded, using a forklift, onto the trailer. The Maxi 8's were loaded one by one. Four Maxi 8s were loaded across the front of the trailer, immediately adjacent to the headboard. The remaining Maxi 8 was loaded to the rear of, and immediately adjacent to, the four Maxi 8s.
48. At the time of loading, the five Maxi 8s were loaded firmly against each other on the trailer.
49. The combined width of the four Maxi 8s, loaded by side by side adjacent to the headboard of the trailer, was 188cm.
50. The four Maxi 8s loaded adjacent to the headboard were positioned centrally on the trailer and there was a gap of approximately 25cm to the raised edge or combing of the trailer on either side of the four Maxi 8s loaded adjacent to the headboard.
51. The fifth Maxi 8, loaded to the rear of the four Maxi 8s adjacent to the headboard, was also centred on the trailer.
52. The headboard of the trailer was metal with a smooth painted surface.
53. The surface of the trailer, onto which the five Maxi 8s were loaded, was unpainted checkerboard sheet metal.
54. No anti-slip material or dunnage was placed between the base of each Maxi 8 and the checkerboard metal deck of the trailer.
55. Mr Webber restrained the five Maxi 8s on the trailer using a single 2,500kg synthetic ratchet strap (the strap).
56. The strap was placed, by Mr Webber, around the five Maxi 8s with:
· one end of the strap being secured to an upright component of the headboard located to the right-hand side of the trailer;
· the other end of the strap being secured to an upright component of the headboard located to the left of the trailer; and
· the strap located approximately 125cm from the base of each "Maxi 8 .
57. Mr Webber did not place any padding or other protection to stop the strap from rubbing on the metal angles of the headboard and the metal angles of the Maxi 8s.
58. Mr Webber did not apply any load restraint over the top of the Maxi 8s to prevent vertical movement.
59. Mr Webber did not block the load to prevent sideways movement of the Maxi 8s on the deck of the trailer.
60. At all material times, after the five Maxi 8s had been loaded and retrained on the trailer, Mr Webber put in place two metal side gates. Mr Webber used two natural fibre ropes to secure the side gates in position on the trailer. The two ropes were not used to restrain the five Maxi 8s on the trailer.
61. Mr Webber then drove the combination out of the winery and travelled, by road, towards Rylstone in the State of New South Wales.
62. At about 10.20am Mr Webber was driving the combination at approximately 90km per hour in a generally easterly direction on Lue Road about 15km from Mudgee.
63. On Lue Road, a short distance past the Hayes Gap Rd turn-off, and shortly after Mr Webber had driven the combination through a right hand kink in the road, some or all of the Maxi 8s moved to the left on the bed of the trailer. The movement of the Maxi 8s, to the left on the bed of the trailer, caused the trailer to dip towards its left hand side.
64. A short time later, as Mr Webber was commencing to drive the combination through a left hand bend in Lue Road, the Maxi 8s moved across the bed of the trailer to right hand side of the trailer. The movement of the Maxi 8s on the bed of the trailer, to its right hand side, caused the trailer to dip to the right.
65. As the trailer dipped towards its right hand side, the left hand tyre of the trailer lifted from the roadway, continuing to rise until the trailer flipped into the oncoming lane of Lue Road.
66. At the same time and at the same place on Lue Road, Jane Mersing, 58 years of age, was driving a Mazda wagon, NSW Registration VXL-969, in a generally westerly direction. There were no passengers in the Mazda wagon.
67. The turning moment caused by the movement of the Maxi 8s on the bed of the trailer, from left to right, caused stress on the tow coupling between the truck and the trailer.
68. Due to stress on the tow coupling, from the turning moment caused by the movement of the Maxi 8 s from left to right on the bed of the trailer, the trailer dislodged from the tow bar fitted to the truck.
69. The safety chains, used as backup between the truck and trailer, failed due to the forces involved in the overturning of the trailer.
70. The five Maxi 8s were also dislodged from the trailer.
71. A portion of the trailer and at least one Maxi 8 collided with the Mazda wagon being driven by Ms Mersing.
72. The impact of the trailer, and of at least one Maxi 8, with the Mazda wagon caused Ms Mersing to sustain severe injury.
73. As a result of the injuries sustained in the impact, Ms Mersing died at the incident scene.
74. A mechanical examination of the trailer performed after the incident disclosed no mechanical defect or failure in relation to the trailer that was a contributing factor to the subject incident.
75. Upon examination after the incident, the main clamping bolt which formed part of the towing mechanism between the truck and trailer, was found to have failed. Upon examination, the mode of failure was observed to be consistent with mechanical overload, most likely due to the overturning moment of the trailer which caused axial tensile forces to be applied to the clamping bolt.
76. Prior to the incident the clamping bolt was not compromised in any way that contributed to the occurrence of the subject incident.
....
78. The general condition of the roadway at the incident scene was in excellent condition and no features were identified that played a causative role in the subject incident.
That the load was not properly secured is clear and accepted by the Company and Mr Doble. But it is necessary to understand the ways in which the securing of it was defective and what could have been done to remedy that inadequacy, and so prevent the death of Ms Mersing.
This evidence is to be obtained in large part from the expert report of Mr M Robertson of Engistics Pty Ltd, which is relied upon by the prosecution. Mr Robertson was not required for cross-examination. His report was accepted as substantially accurate by Mr Rob Di Cristoforo, an expert relied upon by the Company and Mr Doble. I accept Mr Robertson's evidence.
Mr Robertson identifies two "crucial matters" which had a direct effect on the load restraint. The first is that the metal pallets of gas cylinders were placed directly onto the steel deck of the trailer, resulting in low friction. This could have easily been addressed by placing anti-slip rubber matting, timber sheeting or timber dunnage between the metal pallet and the steel deck of the trailer. Mr Robertson expressed the view that placing goods "metal on metal" directly onto a steel deck was poor load restraint practice. The problem of low "metal on metal" friction was widely known in the transport industry prior to this collision. Mr Doble accepted in his evidence that this was so.
The second crucial matter identified by Mr Robertson was the method of lashing used in this case because, besides being of inadequate restraining capacity, the lashing failed to provide any direct restraint. This means that the relevant force was taken directly onto the lashing without relying upon friction. That failure occurred because only one strap was used, and it was anchored at an inappropriate angle being bent around and towards the central uprights of the headboard. The webbing straps did not have any protective sleeve at the corners of the steel post.
Such was the inadequacy of the restraining strap that Mr Robertson expressed the view that it:
"... dooms the strap to premature failure when loaded because it exposes the webbing to a steel edge and places uneven loads on the strands within the webbing."
In short, the combination of these two crucial matters meant that there was little sideways resistance to sliding, with the result that the restraint method failed at 0.21 G of lateral force, when the minimum legal requirement for adequate sideways restraint was that the load not be able to move or dislodge under a lateral force of 0.5 G. Put simply, the capacity of the lashing was a little over forty per cent of the minimum legal requirement.
The inadequacy of the load restraint could have been, but was not, addressed by any of the following measures which were well-known in the transport industry, and readily available to be implemented here:
- using timber or other like material to "sideways block" the load to prevent lateral movement;
- using at least three webbing straps and lashing the load in a different configuration;
- restraining the load over the top of it to prevent vertical movement during transport;
- attaching the webbing straps to the outer, rather than the central, vertical posts of the headboard.
The expert opinions of Mr Robertson and Mr Di Cristoforo both expressed the view, which I accept, that the breach of the load restraint requirement was a severe breach. I am satisfied that it was because the breach involved an appreciable issue of harm to public safety. Once the gas cylinders had been loaded, the journey embarked on was about 150km long. That the journey was much shorter in fact because of the collision does not diminish the potential risk of harm to public safety.
As well, because of the inadequacy of the load restraint and the risk of the load being dislodged during the journey, there was a serious risk of harm to the road infrastructure and, if a collision occurred, there would inevitably be increased traffic congestion at and around the collision site, with a consequent diminution of public amenity.
Clearly this was a severe risk breach with many of the consequences to which s 60 of the RTG Act refers.
Specific Statutory Provisions
In imposing a penalty for each of these offences, there are a number of specific statutory provisions to which it is necessary to have regard.
The first of these is clause 61(2) of the Road Transport (Mass Loading and Access) Regulation 2005 ("MLA Regulations"). That clause provides that a load on a vehicle or trailer
"... must be secured so that it is unlikely to ... be dislodged from the vehicle."
As well, s 60 of the RTG Act is also relevant. It is in the following form:
"60 Matters to be taken into consideration by courts
(1) The purpose of this section is to bring to the attention of courts the general implications and consequences of breaches of mass, dimension or load restraint requirements when determining the kinds and levels of sanctions to be imposed.
(2) In determining the sanctions (including the level of fine) that are to be imposed in respect of breaches of mass, dimension or load restraint requirements, a court is to take into consideration the classification of the breach under this Part and, having regard to that classification, the following matters:
(a) minor risk breaches ...
(b) substantial risk breaches ...
(c) severe risk breaches involve one or more of the following:
(i) an appreciable risk of harm to public safety or the
environment,
(ii) a serious risk of accelerated road wear,
(iii) a serious risk of harm to road infrastructure,
(iv) a serious risk of increased traffic congestion,
(v) a serious risk of diminished public amenity,
(vi) a serious risk of unfair commercial advantage.
..."
As Price J said in Roads & Traffic Authority NSW v Fletcher International Exports Pty Ltd [2008] NSWSC 936; (2008) 51 MVR 41 at [40]:
"40 The purpose of s 60 is to bring to the attention of courts when considering an appropriate sentence the consequences of a failure to comply with a breach of mass, dimension or load restraint requirement. The matters to which a court is required by s 60(2) to have regard depends upon the classification of the risk breach as a minor, substantial or severe. The matters which a court is required to consider by the Legislature for a severe risk breach are necessarily very different to those for a minor risk breach. The requirement that regard be had to an appreciable risk of harm to public safety is exclusive to sentencing for a severe risk breach: s 60(2)(c)(i). For a severe risk breach it is the seriousness of the risk which distinguishes those matters detailed in subparagraphs (ii)-(vi) from the matters to be considered for a substantial risk breach: s 60(2)(b)(i)-(v). Nothing in s 60 affects any other matter that a court may consider when sentencing an offender such as s 3A of the Crimes (Sentencing Procedure) Act which sets out the purposes for which a court can impose a sentence and s 21A of the same Act which provides for aggravating and mitigating factors."
Because I am imposing a sentence for a severe risk breach, I am obliged to, and will have regard to, each of the matters in s 60(c)(i)-(vi) inclusive, insofar as they are presently relevant. As I have earlier remarked, the matters within that section which are of particular relevance are:
(h) an appreciable risk of harm to public safety as was demonstrated by what in fact occurred;
(i) a serious risk of harm to the road infrastructure as occurred when the load, having fallen off the truck, damaged the road itself, and which may have, but fortunately did not occasion any damage to other roadside infrastructure;
(j) the serious risk of traffic congestion caused by the happening of either of the two events to which I have just made reference or, alternatively, if the load shifted in the course of transport.
The provisions of s 21A of the Crimes (Sentencing Procedure) Act must also be taken into account. Section 21A(2) provides for matters which are regarded as aggravating factors to be taken into consideration when imposing a sentence. Here, relevantly, s 21A(2)(g) requires the Court to take into account as an aggravating factor, that the injury, loss or damage caused by the offence was substantial. There is no doubt that those consequences of this offence were substantial. The loss of the life of Ms Mersing, is the most serious consequence of this offence.
Section 21A(3) of Crimes (Sentencing Procedure Act) Act requires the Court to have regard to particular factors as mitigating the offence. In accordance with that section, I have regard here to the fact that the Company does not have any record of relevant previous convictions: s 21A(3)(e).
The provisions of s 21A(3)(i) of the Crimes (Sentencing Procedure) Act, have the effect that, if the Company is remorseful and as provided for in s 21A(3)(g), is unlikely to offend again, then these are matters which can be taken into account by way of mitigation when considering the appropriate penalty to be imposed. It will be necessary to consider whether this is so in due course.
Since the Court is imposing a fine on the Company, s 6 of the Fines Act 1996 requires the Court to consider such information as is provided about the means of the Company to pay the fine. The Company has not tendered any financial statements or other information about its capacity or lack of capacity to pay any fine which is imposed. Mr Doble is in a similar position. Thus, there is no basis to temper any fine because of the financial circumstances of either defendant.
I cannot be satisfied that any fine which may be imposed would have any significant adverse financial impact on the commercial operations of the Company. I do not propose to regard this factor as having any significant weight in assessing the appropriate fine to be imposed.
Plea of Guilty
Offenders, such as the Company and Mr Doble, who or which plead guilty to the offences charged, are ordinarily entitled to a discount with respect to any penalty which is imposed, so as to recognise the utilitarian value of the plea to the administration of justice in NSW: s 22 Crimes (Sentencing Procedure) Act.
It is clear that the discount for the utilitarian value of a plea will be determined largely by the timing of the plea, so that the earlier the plea, the greater discount: R v Thomson & 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].
As Howie J said in Borkowski, with the agreement of McClellan CJ at CL and Simpson J, at [32]:
"9. The utilitarian value of a delayed plea is less and consequently the discount is reduced even where there has been a plea bargain ..., or where the offender is waiting to see what charges are ultimately brought by the Crown ..., the offender has delayed the plea to obtain some forensic advantage ... "
On 19 September 2013, the proceedings were fixed, together with other proceedings, for a contested hearing by the Court, for a period of 10 days. I am informed by counsel for the Company and Mr Doble, that at the time the matter was fixed for hearing, the estimate of the proceedings insofar as they affected the Company, Mr Doble and his fellow directors, was five days. The balance of the estimated period was to deal with other matters which were to be listed at the same time as the present proceedings.
Accepting this, a plea delivered, as these were, either on the last court day before the commencement of defended hearings or else, as in Mr Doble's case, on the first day of the hearing, cannot be regarded as an early plea. The matter was factually uncomplicated. Two years passed between the accident and the commencement of the proceedings, and a further 12 months passed before the pleas were entered. Over that lengthy period, each of the defendants had ample time to inform themselves of what had happened in the collision, and to consider their response to the summonses. By the time the plea was notified to the Court, including the fact that the hearing of the sentencing proceedings would take about two hours, the Court was unable to reallocate the time that was set aside for these two matters.
I assess the utilitarian value of the pleas of guilty, having regard to the very late stage at which they were entered, as being minimal. I do not propose in all of these circumstances to allow any discount to reflect the late entry of a plea of guilty, in each matter.
Likelihood of Re-offending
Mr Doble gave evidence. He was the only officer of the Company to be called.
The manager of the Bathurst Depot, Mr Ross Miller, was the manager directly responsible for what occurred on the day in question. Mr Miller has an ongoing role at the Bathurst Depot. He was not called to give any evidence as to what happened, and how such an event might be prevented from happening in the future.
Mr Doble, who is a director and the owner of one half of the Company, gave some evidence as to what the Company had done since the events of 3 May 2011. His counsel submitted that from this evidence the Court would be satisfied that it would be unlikely that the Company would commit a further offence of the type here committed.
I am not so satisfied. I accept Mr Doble's evidence that the Company has undertaken one formal training session in Sydney with an external training provider, about proper load restraint. The Court has not been provided with the details of who attended that training, whether it encompassed all of the drivers employed by the Company or any of the relevant depot managers, and other staff in charge of the Company's operations.
The Court was informed that the Company operated about 60 trucks, of various sizes, from six depots in NSW. The formal training was apparently only provided in Sydney, and it is quite unclear from the evidence the extent to which such training penetrated those in the Company's employ who needed it, and who were located outside Sydney. Some informal training was apparently provided at some country depots. Again, there is no detail available to identify the context and extent of this.
As well, Mr Doble says, and I accept, that the accident, involving as it did the death of road user, has led to a greater awareness amongst the Company's staff of the need to ensure that loads are safely secured. So much can be accepted. Awareness ought give rise to vigilance, and constant vigilance is one means by which safety can be improved.
Finally, Mr Doble gave evidence, again which I accept, that drivers were provided with mobile telephones and could, if they required advice about the securing of a load, telephone their depot manager for such help. Mr Doble agreed that the provision of mobile telephones to the drivers was principally for commercial and customer service reasons, but he said that they provided a means whereby drivers could obtain expert advice if necessary.
However, at the end of Mr Doble's evidence, I was left with the clear impression that the notion of the Company and its directors embracing, implementing and maintaining a culture of safety, which would be necessary to prevent a recurrence of this offence in the trucking operations, was not at all understood and did not exist.
It is apparent from Mr Doble's evidence that a good deal of the loading of the vehicles operated by the Company occurs at the Company's depots. There, goods are moved from one form of vehicle to another. It appears that loads are redistributed for the purposes of efficiency of transport and delivery. The consequence of this occurring at a depot is that there is practical guidance from, and oversight by the depot manager with respect to all trucks leaving the depot, to ensure that loads had been secured properly in the depot.
However, this does not address that part of the transport business in which the Company is engaged, of collection of goods from distant locations (that is, locations distant from the depot), and the subsequent transportation of those goods collected from one distant location and moved to another, or alternatively, from one distant location to a depot.
It is apparent that with respect to such loading and transport, the Company exercises no practical supervision at all of the securing of the load, and except for the provision of formal training on one occasion in 2011, has not formally trained any of its employees again inadequate securing of loads. The evidence did not address this issue for any employee who may have joined the Company since 2011.
At each depot of the Company, and in the possession of the depot manager, is a copy of the presently published National Load Restraint Guide. That Guide contains detailed information as to how loads can be properly and adequately secured. A copy of the Guide is not made available to drivers to carry in their trucks. Accordingly, a truck driver who loads at a distant location does not have the benefit of being able to consult the Guide in order to check how a load should be secured or whether such securing system as has been put in place is appropriate.
There is no random audit undertaken by the Company to check whether drivers have in fact appropriately secured any load. The Company leaves it to the responsibility of each driver, whose individual skill in this area must necessarily be variable. Some will be better than others. Nor is there a system for drivers to report by way of photograph or otherwise, about the securing of the load, before setting off from distant locations for their trip. Ultimately, Mr Doble accepted in his evidence that nothing has changed in the Company's approach to securing loads adequately at distant locations since the accident here being dealt with.
In short, if a driver loading at a distant location is not securing the load adequately, it is unlikely to come to the Company's attention unless an accident of the kind relevant here, occurs.
I am not satisfied in all the circumstances that the Company has demonstrated that it is unlikely to re-offend. The same conclusion applies to Mr Doble. On the contrary, I am satisfied that the Company, under the direction of Mr Doble, continues to operate its freight transport business in a way which presents ongoing and largely uncontrolled and unaddressed risks to public safety.
Remorse
It is appropriate under s 21A(3)(i) of the Crime (Sentencing Procedure) Act to take into account in mitigation of the offences, that the Company and Mr Doble have expressed remorse for their conduct. Except for the plea of guilty to the offences, there is no evidence that the Company or Mr Doble have accepted responsibility for their actions nor have they, other than by their pleas, acknowledged any injury, loss or damage caused by their actions. There is no evidence that they have made, or attempted to make, any reparation for the injury, loss or damage caused by their conduct as the statute requires.
I am not persuaded on the balance of probabilities that the mere entry of a plea, particularly at the time at which it was entered, indicates any remorse on the part of the Company or Mr Doble.
I am not satisfied that the Company or Mr Doble are entitled to any mitigation by reason of any expression of remorse, or any demonstration of remorse with respect to these offences.
Seriousness of the Offence
It is appropriate to make an assessment of the seriousness of the offence, and the conduct of the Company and Mr Doble. This assessment arises from the nature and circumstance of the offence: Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [27].
I am satisfied that the events underlying the offences amount to a serious example of a severe risk breach of a load restraint offence. The load that was being moved was a heavy one, consisting of five separate packs, each containing eight gas cylinders. It was about 3.5 tonnes.
The distance being travelled from Mudgee to Bathurst, via Rylstone and Kandos, was over 150km. The route taken included significant distances along principal rural roads, which might reasonably be expected to be carrying a reasonable volume of traffic. The vast bulk of the journey was carried out over roads which are regularly used by traffic, and which could not be considered to be remote or unused roads. As a matter of fact, the load restraint failure caused the death of Ms Mersing, an entirely innocent road user who was complying with all of her obligations. The resultant collision presented a significant disruption to traffic travelling along Lue Road between Mudgee and Rylstone, which was a designated tourist route.
Having regard to the entirety of the route which it was intended that the truck would travel, and which trip was truncated by the accident, there was a serious risk not only to the lives of fellow road users but also to road infrastructure and public amenity in allowing a vehicle with an insecure load to travel as the truck and trailer combination did on this journey.
The role of the Company and its responsibility for the event that transpired cannot be said to be a singular one. Nevertheless, I am satisfied it was a central role. The Company was the operator of the vehicle; it received the order from the consignor; it determined which of its fleet of trucks would attend to collect the load; it determined which driver would attend to collect the load; it, through its driver, had the responsibility of ensuring the load was placed on the truck, and of ensuring that the load was secured adequately. This it did not do, other than by leaving it to the driver, Mr Webber, who clearly did not have an adequate understanding of the steps which ought to have been taken to secure the load. Mr Doble accepted in his evidence that such steps as should have been taken to secure the load adequately were simple, basic and well known in the transport industry well before May 2011.
I have concluded that all of these circumstances combine to show that this is a very serious offence with respect to the Company, and an offence that falls at the upper end of the range of seriousness.
Mr Doble was, as I have earlier indicated, the principal director of the Company, and a shareholder who owned one half of the Company.
Whilst he was not personally present at the Bathurst Depot, nor was he present when the truck and trailer combination was loaded, nevertheless, as the legislation recognises, it is important that any director of a company engaged in this industry takes steps to ensure compliance by the company of which he is a director, and its employees, with the provisions of the road transport legislation.
The clear impression which I had from Mr Doble's evidence was that he had nothing to do with this particular load and this particular driver - leaving it all to the discretion of his Bathurst Depot manager, Mr Miller. Although Mr Doble expressed the view in evidence, which I accept, that Mr Miller was hired by the Company because he seemed to be appropriately qualified, it is quite insufficient for a director of a company in the heavy transport industry, particularly where the director is in effect the day-to-day chief executive of the company as was here the case, to simply leave these matters in the hands of subordinates without ensuring adequate training, adequate supervision, adequate checking and on-going management of the safety requirements imposed by the heavy vehicles legislation. If there is to be an effective culture of safety in any organisation, it must be implemented and championed by those in charge of the organisation.
The clear impression I had from Mr Doble was that he did little to attend to these matters of safety, leaving them essentially to depot managers, and that his duties seemed to concentrate on customer service and other like matters.
What occurred here, as I have earlier said, was a serious offence. Mr Doble's failure to address any of the underlying issues was a serious breach of his obligations as a director created by the road transport legislation.
I have also concluded that, in Mr Doble's case, the offence falls at the upper end of the range of seriousness.
Previous Convictions
The prosecution tendered the prosecution history of the Company. The prosecution accepted that, for the purposes of the legislation under which the charges were brought, the Company ought be regarded by the Court as a first offender. There is no suggestion that Mr Doble has previously been convicted of any relevant offence.
I take into account the fact that neither of the Company nor Mr Doble has, relevantly, any previous record of convictions, or convictions that are of any significance to the offence to which they have pleaded guilty.
Penalty
Insofar as the Company is concerned, I impose a fine for the load restraint offence of 225 penalty units. I acknowledge that this fine approaches the maximum of 250 penalty units, but in fixing that number, the approach reflects my conclusion of the objective seriousness of the criminality involved and the need for general deterrence, taken together with all of the other factors and, in particular, the fact that I am unpersuaded that anything which the Company has done will be likely to avoid a recurrence of an event such as this.
With respect to the offence by Mr Doble, I impose a penalty of 40 penalty units. Again, I accept that this approaches the maximum of 50 penalty units. In my view, any lesser penalty would not aid as a deterrent for those in the heavy transport industry to conduct themselves and their businesses, in a way which protects, so far as is possible, the safety of the public.
Sentence and Orders
I make the following orders:
In proceedings number 2013/135912:
(1) I convict Doble Express Transport Pty Ltd of an offence contrary to s 56(1) of the Road Transport (General) Act 2005.
(2) With respect to that offence, I impose a fine of $24,750.
In proceedings number 2013/135839:
(3) I convict Graeme John Doble of an offence contrary to s 178 of the Road Transport (General) Act 2005.
(4) With respect to that offence, I impose a fine of $4,400.
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Decision last updated: 19 June 2014
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