Kemp v Walker; Kemp v Robbie Walker Transport Operations

[2015] NSWSC 490

Supreme Court

New South Wales

Medium Neutral Citation:	Kemp v Walker; Kemp v Robbie Walker Transport Operations [2015] NSWSC 490
Hearing dates:	23 April 2014
Date of orders:	01 May 2015
Decision date:	01 May 2015
Jurisdiction:	Common Law
Before:	Hidden J
Decision:	Company and director convicted. Company fined $16,500, director fined $900. Order for costs of $20,000.
Catchwords:	CRIMINAL LAW – summary jurisdiction – offences under Road Transport (General) Act 2005 – breach of load restraint requirements – company as operator of a heavy vehicle – director of that company – pleas of guilty
Legislation Cited:	Road Transport (General) Act 2005 Road Transport Act 2013 Road Transport (Mass, Loading and Access) Regulation 2005 Crimes (Sentencing Procedure) Act 1999 Heavy Vehicle (Adoption of National Law) Act 2013
Cases Cited:	Roads and Maritime Services v L & M Scott Haulage Pty Ltd [2013] NSWCCA 107 The Roads and Traffic Authority of New South Wales v Fletcher International Exports Pty Limited [2008] NSWSC 936 Kemp v KGB Protective Coating Pty Ltd [2014] NSWSC 586
Texts Cited:	Load Restraint Guide issued by the National Transport Commission & the RTA, Part 1, Section B (at p47)
Category:	Principal judgment
Parties:	Peter Stewart Kemp (plaintiffs/prosecutor) Robert John Walker (defendant) Robbie Walker Transport Operations Pty Ltd (defendant)
Representation:	Counsel: M Higgins (plaintiffs/prosecutor) AB Gotting (defendants) Solicitors: B Thomson – A/Assistant Crown Solicitor, Crown Solicitor’s Office (plaintiffs/prosecutor) Adam Pope, Thomson Geer (defendants)
File Number(s):	2013/212107 & 2013/212093

Judgment

1. This is a prosecution in the summary jurisdiction of this court under the Road Transport (General) Act 2005 (since repealed and replaced by the Road Transport Act 2013.) The prosecutor, Peter Stewart Kemp, is an authorised officer of the Roads and Maritime Services (RMS). The defendants are Robbie Walker Transport Operations Pty Ltd (referred to in the material before me as “RWTO”) and that company’s sole director, Robert John Walker. The prosecution arises from a tragic incident on the Mitchell Highway near Bathurst on 14 July 2011. A vehicle and trailer, known as a combination, operated by RWTO, was laden with a number of pre-fabricated steel beams. Part of the load fell from the trailer, colliding with a number of motor vehicles travelling in the opposite direction, causing the death of a woman in one of those vehicles.

2. RWTO, as the operator of the combination, has pleaded guilty to the following offence under the 2005 Act:

“that it did contravene s. 56(1) of the Road Transport (General) Act 2005 as the operator of a Combination within the meaning of s. 21(1)(a) of the RTG Act, in that on 14 July 2011 on the Mitchell Highway 1km west of Bradwardine Road near Bathurst in the state of New South Wales, a breach of a load restraint requirement occurred, namely cl. 61(2) of the Road Transport (Mass, Loading and Access) Regulation 2005, when part of the Load of five pre-fabricated steel beams fell from the Combination and collided with six motor vehicles travelling in the opposite direction, causing the death of Leonie Darling, an appreciable risk of harm to public safety and a serious risk of harm to road infrastructure.”

3. Mr Walker, as a director and, as such, a person concerned with the management of RWTO, has pleaded guilty to an offence in the same terms.

Facts

4. There is a detailed statement of agreed facts, which sets out the process by which RWTO was engaged to transport the load. It is sufficient to say that the company was engaged by KGB Protective Coatings Pty Ltd (“KGB”) to transport three large steel beams and two shorter sections of steel fabrication from Newcastle (Gateshead) to a site near Orange. The arrangement was effected through RWTO’s transport manager, David Crighton. The driver was Basil White, who was employed by RWTO through a related entity.

5. The task was undertaken between 13 and 14 July 2011. On 13 July, at Gateshead, the load was placed on the trailer of the combination. That was done by KGB staff, who were not trained in load restraint. They were assisted by Mr White. The process of loading is described in the agreed facts, but I need not recount it. It is sufficient to say that part of the equipment used to restrain the load was “dunnage,” being lengths of softwood timber upon which the load was placed. This was supplied by RWTO. Chains and straps were also used.

6. Mr White was confident that the load was secure before he set off on the journey. He drove to Dunedoo, where he rested overnight. The next morning, he checked the chains and straps to make sure that they were still in place and that the load was still secure. At about 8.30am the vehicle was travelling on the Mitchell Highway west of Bathurst, heading towards Orange, when part of the load fell from the trailer and collided with six vehicles travelling in the opposite direction. As a result, the vehicles and the road surface were damaged. Unfortunately, the driver of one of the cars, Ms Leonie Darling, was killed.

7. After the incident it was discovered that the dunnage supplied by RWTO had compressed under the weight of the load, and that one of the pieces of timber had failed completely due to a defect known as a sap inclusion. Neither Mr Walker nor RWTO was aware of that defect.

8. The agreed facts record that Mr Walker and RWTO had never previously been charged with or convicted of a criminal offence. It is also recorded that Mr Walker and the company co-operated fully with all the investigations by RMS and the police, provided all information and documents requested by them, and Mr Walker voluntarily attended and participated in recorded interviews with RMS.

9. It is not in dispute that Mr Walker was not personally involved in this particular transport operation at any stage. In an affidavit sworn by him for the purpose of these proceedings, he deposed that he was in Wangaratta at the relevant time.

10. Section 56(1) of the Act creates the offence of breach of a load restraint requirement by the operator of the vehicle or combination concerned. Mr Walker’s liability derives from s 178(1), which provides that, where a body corporate commits an offence, a director of that body corporate and any person concerned in its management “is taken to have committed the offence and is punishable accordingly.” The relevant load restraint requirement is to be found in cl 61(2) of the Road Transport (Mass, Loading and Access) Regulation 2005, which provides that a load on a vehicle or a trailer must be secured so that it is unlikely to fall or be dislodged from the vehicle.

11. For the purpose of determining the penalty for breach of a load restraint requirement (among other breaches), s 60(2) of the Act classifies them as minor risk, substantial risk, or severe risk breaches. Subsection (2)(c) sets out a number of factors leading to the classification of a breach as severe risk, including:

(i)   an appreciable risk of harm to public safety or the environment, and

(iii)    a serious risk of harm to road infrastructure.

Both those factors are present in this case, so that the breach charged is a severe risk breach. That is a fact bearing upon the determination of the level of fine which might be imposed, but is not an aggravating circumstance as that term is generally understood in sentencing law: Roads and Maritime Services v L & M Scott Haulage Pty Ltd [2013] NSWCCA 107, at [25]-[27].

12. The breach in the present case being a severe risk breach, and RWTO and Mr Walker both being first offenders, the effect of s 59 of the Act is that the company faces a maximum fine of $27,500 and Mr Walker a maximum fine of $5,500.

Subjective case

13. Mr Walker is now 63 years of age, and he is retired. He had been involved in the transport industry since 1970, initially as an employed truck driver but from about 1976 as the operator with his wife of his own transport business. In 1982 he ran his business through a company known as Robbie Walker (Wangaratta) Pty Ltd (“RWW”). RWTO was incorporated in 1997. It operated in combination with RWW, which owned the fleet of heavy vehicles and employed the drivers or engaged them through sub-contractors.

14. In his affidavit Mr Walker deposed to the increasing size of his transport business over the years and the very large number of loads which his enterprises had transported in the eastern states of Australia. During that whole period there was only one prior incident in which part of a load was dislodged from a vehicle. This was in about 2008, when a piece of fabricated steel fell to the road from an RWTO vehicle, causing damage to a following truck. The incident was not investigated by the Roads and Traffic Authority (RTA), as it was at the time, and no charge was laid. Otherwise, it is common ground that during the whole of the period of his involvement in the industry, neither he nor RWTO had ever contravened any road safety legislation or any load restraint regulations or guidelines.

15. From the inception of RWTO Mr Walker’s role had been as a director and manager, responsible for overseeing the operation of the business, including ensuring that the employees were performing their duties properly. A number of full time drivers were employed, as well as operational staff and mechanics. He deposed in the affidavit that prior to the fatal incident it was his practice to closely scrutinise the resumé and experience of any new driver, to ensure that they were capable of operating heavy vehicles and securing loads to be carried. He would make enquiries of their previous employers as to their competence and require drivers to disclose details of their driving history, including particulars of any accidents and of any convictions or traffic offences.

16. Mr White, the driver of the combination on the occasion in question, had been employed on 5 July 2011, nine days before the incident. On 9 July, Mr Walker had personally inspected a combination which he was driving, carrying steel, forklifts and machines, and found that the load was safely secured.

17. Throughout the whole period over which he operated a transport business it was his practice to inspect, on an ongoing basis, the log books of drivers engaged to ensure that hours driven and rests or breaks taken complied with relevant requirements in New South Wales and other States. Over the same period he also personally checked each truck in the fleet to ensure that they were stocked with an adequate quantity of loading and safety equipment, including dunnage and chains to secure a load.

18. After the incident, on 19 July 2011, the RTA sent to Mr Walker, as director of RWW, an improvement notice, pursuant to s 100 of the Act, requiring immediate action to be taken to prevent any further contravention of a load restraint requirement for a heavy vehicle and to provide a summary of that action to the RTA. On 22 July, RWW’s lawyers supplied the RTA with a document setting out a range of new policies and procedures to ensure that there was no repeat of such an incident. A copy of that document, setting out a variety of procedures to which it is not necessary now to refer, is annexed to Mr Walker’s affidavit.

19. Mr Walker retired from the transport industry on 30 September 2013. He has not returned to it and does not intend to do so. Both RWTO and RWW are still incorporated, but the business is no longer in operation. RWW has put its fleet of vehicles up for sale. However, both companies have retained funds in their bank accounts to meet any future taxes and expenses, as well as any fines or costs imposed in the present proceedings.

20. In his affidavit Mr Walker expresses deep remorse for the offence, and heartfelt sympathy for the family of the unfortunate Ms Darling. He adds that he accepts full responsibility for the incident, and is “personally very affected” by it. Indeed, this tragedy was a material factor in his decision to terminate his involvement in the transport industry.

21. Both RWTO and Mr Walker entered pleas of guilty to the charges against them at an early stage and, as noted above, Mr Walker co-operated fully with the police and the RTA in the investigation of the matter.

22. I received testimonials from Mr Walker’s daughter-in-law and from a former employee of his. This material attests to his good character and, in particular, to his sense of social responsibility generally and in the conduct of his business. His daughter-in-law’s letter also speaks of his generosity, his devotion to his wife and two sons, to the depth of his remorse at the death of Ms Darling, and to the effect upon him and his family of the termination of his business. This material, which is unchallenged, is properly to be taken into account on the question of penalty.

Penalty

23. The defendants accept that the breach of the load restraint requirements here amounted to a severe risk breach, on both the bases under s 60(2)(c) referred to above. Section 60(1) provides:

“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.”

24. In The Roads and Traffic Authority of New South Wales v Fletcher International Exports Pty Limited [2008] NSWSC 936, Price J considered s 60. At [40], his Honour noted the structure of the section and observed:

“The matters to which a court is required by s 60(2) to have regard depends upon the classification of the risk breach as 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.”

25. In written submissions counsel for the prosecutor, Mr Higgins, set out a passage of the second reading speech of the responsible minister when introducing the Bill for the 2005 Act, which emphasises the breadth of the chain of responsibility imposed by the legislation for breaches of the statutory requirements:

“An important concept in the new provisions is the extensive chain of responsibility requirements introduced in the Bill. 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. These provisions recognise that to date, drivers and operators have generally been the focus of enforcement action for breaches of road transport law … .

Under the new regulatory framework, those other parties in the transport chain who by their actions, inactions or demands put drivers and other roads users at risk and gain unfair commercial advantage may also be committing an offence and be liable to significant penalties. In practical terms, this means that it is essential that all parties to the chain of responsibility – consignors, packers, loaders, operators, drivers and in some cases consignees – need to be aware of the requirements of road transport law particularly relating to mass, dimension and load restraint. They also need to have active systems in place to manage these risks to minimise the chance of road transport laws being breached.”

26. Counsel for the defendants, Mr Gotting, submitted that RWTO’s offence should be seen as in the mid to low range of objective gravity, and Mr Walker’s in the low range. He noted that neither the company nor Mr Walker was aware of the defect in the dunnage. The driver was confident that the load was secure before his departure from Newcastle, and checked that it was secure the following morning before continuing the journey. Mr Walker was in Wangaratta at the time, and played no part at all in placing or securing the load.

27. Mr Gotting relied upon the fact that neither RWTO nor Mr Walker had previously come under notice for contravention of any road safety legislation or any load restraint regulations or guidelines. He noted the lengthy period over which RWTO had been trading, and the much lengthier period over which Mr Walker had been involved in the transport industry, including as a director of RWW. The incident in 2008 was the only previous occasion upon which a part of a load had fallen from a vehicle while being transported by RWTO, an event which the defendants chose to disclose in these proceedings.

28. Mr Gotting also relied upon the evidence of Mr Walker’s responsible approach to the recruitment of drivers through RWW, and the steps he took personally to ensure compliance by them with regulatory requirements, including those directed to the securing of a load. He also referred to the fact that Mr Walker had personally inspected the load on the vehicle driven by Mr White a few days before the fatal incident to ensure that it was safely secured, and to his prompt and thorough response to the improvement notice forwarded to him after the incident.

29. Finally, Mr Gotting relied upon Mr Walker’s lack of any criminal history, his good character and his deep remorse, as well as his co-operation with RMS and the early pleas of guilty entered by him and RWTO. While he acknowledged the importance of general deterrence for offences such as these, he submitted that specific deterrence has no part to play. Quite apart from Mr Walker’s good record and full acceptance of responsibility for the present breach, it is clear that RWTO has ceased trading and his involvement in the transport industry has come to an end.

30. Mr Gotting accepted that a fine should be imposed upon RWTO, mitigated by all the circumstances to which I have referred, but that Mr Walker should have the benefit of a dismissal under s 10 of the Crimes (Sentencing Procedure) Act 1999, if necessary, accompanied by a good behaviour bond. He noted that the Act envisaged that there might be circumstances in which s 10 could be applied, referring to s 187(6). The effect of that subsection is that a person cannot be dealt with under that section for a number of specified offences, including a severe breach of a load restraint requirement, if that person had been given the benefit of the section in the previous 5 years in respect of any one of those specified offences. For completeness, he also referred to similar provisions in s 203 of the Road Transport Act 2013 and s 27F of the Heavy Vehicle (Adoption of National Law) Act 2013.

31. Undoubtedly, Mr Walker has made out a strong subjective case. I accept that he is a person of good character, and that this tragic incident has had a deep and enduring effect upon him. I also accept that there is no prospect of his being involved in an offence of this kind again. However, I am persuaded by the submissions of Mr Higgins that it is not appropriate to deal with him under s 10.

32. General deterrence necessarily looms large in offences such as this. As Mr Higgins pointed out in oral argument, the legislation recognises that this is an industry where “there are a number of different stages at which people discharge a responsibility under the Act,” to ensure the prevention, or at least the reduction, of risk to public safety and to road infrastructure. He emphasised the responsibility cast upon the director of a corporation by s 178(1), a responsibility which is personal rather than vicarious.

26. Part of the load fell from the vehicle not just because of the sap inclusion defect, of which RWTO and Mr Walker were unaware, but also because the softwood dunnage was inadequate to support the load. Mr Higgins referred to the Load Restraint Guide, being guidelines and performance standards for the safe carriage of loads on road vehicles, issued by the National Transport Commission and the RTA. Dunnage is dealt with in section B of the Guide, and contains the following admonition (at p47):

“Timber which is used for dunnage should be relatively free of knots and splits. For heavy loads, such as large steel sections that are supported on small areas of contact, the dunnage should be strong enough to prevent it crushing or splitting.”

34. I cannot accept Mr Gotting’s submission that, on the part of RWTO and Mr Walker, the offence falls into the lower range of objective gravity. Convictions of both defendants should be recorded and fines imposed. However, the fines must reflect the mitigating circumstances of the case and will be reduced by 25% in recognition of the early pleas of guilty.

35. The company which engaged RWTO, KGB, has also faced prosecution because of the incident. It pleaded guilty to similar offences, severe breach of the load restraint requirement, in its capacity as loader of the goods; s 55(1) of the Act, and consignor of the goods: s 53(1). Each offence carried the same maximum penalty, $27,500. Garling J convicted the company of both offences but, taking the view that they encompassed the criminality of one incident, imposed a fine of $18,150 on the first offence only: Kemp v KGB Protective Coating Pty Ltd [2014] NSWSC 586. His Honour assessed the fine after allowing a 25% discount for the pleas of guilty. It appears that KGB did not present a favourable subjective case such as that made out here. The decision was made available to me after I had reserved my decision in the present case, and it is not suggested that strictly the principles of parity are attracted.

36. But for its plea of guilty, I would have imposed upon RWTO a fine of $22,000. A 25% reduction produces a figure of $16,500. Mr Walker is entitled to a significant degree of leniency in the light of his personal circumstances. But for his plea of guilty, I would have imposed a fine of $1,200. A 25% reduction produces a figure of $900.

37. Accordingly, RWTO is convicted and fined $16,500. Mr Walker is also convicted and fined $900. It is agreed that the defendants should be ordered to pay the prosecutor’s costs, assessed at $20,000.

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Decision last updated: 01 May 2015