Palfrey v Spiteri, Palfrey v Spiteri, Palfrey v South Penrith Sand and Soil Pty Ltd, Palfrey v Roberts

[2014] NSWSC 842

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Palfrey v Spiteri, Palfrey v Spiteri, Palfrey v South Penrith Sand & Soil Pty Ltd, Palfrey v Roberts [2014] NSWSC 842
Hearing dates:	28/04/2014, 29/04/2014, 30/04/2014
Decision date:	27 June 2014
Jurisdiction:	Civil
Before:	Garling J
Decision:	Refer to [122] of judgment
Catchwords:	CRIMINAL LAW - summary jurisdiction - multiple offences - Road Transport (General) Act 2005 - Road Transport (General) Regulation 2005 - offences by company - offences by directors - offences by schedulers - breaches of heavy vehicle driver fatigue management requirements - standard work hours - driving while fatigued - guilty pleas CRIMINAL LAW - sentencing - Road Transport (General) Act 2005 - Road Transport (General) Regulation 2005 - breaches of statutory requirements - significant potential for injury, loss or damage - whether 'one person company' - whether multiple offences were products of a single act of criminality - principle of totality - levels of seriousness of criminality - offences committed without regard to public safety - no previous convictions - good character - unlikelihood of re-offending - discount for guilty pleas - fines imposed
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986 Fines Act 1996 Heavy Vehicle National Law (NSW) - No.42a Road Transport (General) Act 2005 Road Transport (General) Regulation 2005
Cases Cited:	Regina v S Y & Anor [2003] NSWCCA 291 Mill v The Queen [1998] HCA 70; (1988) 166 CLR 59 Minister for the Environment and Heritage v Greentree (No.3) [2004] FCA 1317 Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 Palfrey v South Penrith Sand & Soil Pty Ltd [2012] NSWSC 1357 Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1 R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 Regina v Stambolis [2006] NSWCCA 56; (2006) 160 A Crim R 510 The Hills Shire Council v Kinnarney Civil & Earthworks Pty Ltd (No.2) [2012] NSWLEC 95
Category:	Sentence
Parties:	David Palfrey (P) South Penrith Sand & Soil Pty Ltd (D) Peter John Spiteri (D) Tienie Marie Spiteri (D) Jason Roberts (D)
Representation:	Counsel: M Higgins (P) (all matters) C J Hatcher SC / S Coleman (D) (all matters) Solicitors: Hicksons (P) (all matters) Farry & Co Solicitors (D) (all matters)
File Number(s):	2011/407656

File numbers continued: 2011/407599, 2011/407560, 2011/407531, 2011/407510, 2011/407636, 2011/407623

Sentence

1. Mr David Palfrey, the prosecutor, has brought a series of charges by a number of individual Summonses each dated 19 December 2011.

1. The charges are against South Penrith Sand & Soil Pty Ltd ("the Company" or "South Penrith"), Mr Peter John Spiteri (who was the owner of the Company and its principal director), Mrs Tienie Spiteri (the wife of Mr Peter Spiteri and also a director of the Company), and Mr Jason Roberts, who was employed as a scheduler by the Company.

1. Each of the Defendants had pleaded guilty to the charges contained in the Summonses with which the prosecutor is proceeding. Some Summonses have more than one charge. It will be convenient to set out in tabular form the details of the Summonses and charges in due course.

1. Earlier interlocutory proceedings dealing with issues about the number of charges and multiplicity of alleged offences, were dealt with by Barr AJ: Palfrey v South Penrith Sand & Soil Pty Ltd [2012] NSWSC 1357.

1. These remarks on sentence deal with the facts underlying the charges, which are substantially agreed, the material concerning the seriousness of the offences, the individual positions and circumstances of each defendant, and the sentences which the Court has determined to impose. It is convenient to address all of these matters together.

1. It will be convenient to commence these remarks on sentence by considering the principal issues, and the common and generally agreed facts.

Commencement of Investigation

1. South Penrith is a company which transported quarried materials, such as sand, soil and gravel, from their source to various sites, largely construction sites, in metropolitan Sydney. It also purchases and resells the quarried materials. The vehicles used for these commercial purposes, and which are relevant to these proceedings, were all in the category known as regulated heavy vehicles, that is, vehicles in excess of 12 tonnes Gross Vehicle Mass.

1. In 2010, which is the time period with which these charges are concerned, South Penrith had been in operation for about 20 years. It had 22 permanent employees, consisting of 14 permanent truck drivers, two schedulers, two office staff and Mr and Mrs Spiteri. As well, there were six casual drivers who were largely used for weekend work.

1. Mr Spiteri was a truck driver for nearly 25 years until 1994, when he purchased the existing business of, and commenced to run, South Penrith. According to the Company accounts, this was a successful enterprise. In the financial year ending 30 June 2010, South Penrith had a total revenue of slightly under $6.5 M. For the 2011 financial year, it was over $6.1 M, and for the 2012 financial year it had a total revenue of over $6.8 M.

1. In March and April 2010, two South Penrith trucks were involved in major road accidents, one on the M4 Motorway and the other on the M7 Motorway. None of the charges before this Court directly relate to those accidents. But, it was as a consequence of these accidents that officers of Roads and Maritime Services ("RMS"), on 12 April 2010, commenced an investigation into the business practices of South Penrith. This audit concentrated on issues of fatigue management, reasonable working hours and the business practices surrounding these matters.

1. It was immediately apparent to the RMS Audit, and South Penrith and the other defendants agreed, that there were no systems or practices in place which addressed any issue relating to fatigue management for the drivers of the Company's vehicles. Nor were there any practices which regulated driving hours by reference to the prescribed reasonable driving hours. Trucks were scheduled to, and were operating according to customer service and commercial considerations, rather than in any way which took account of, and followed, safe working practices, as specified by the legislation.

Statutory Regime

1. The Road Transport (General) Act 2005 ("RTG Act"), was, at the relevant time, the applicable legislation. It is necessary also to refer to the Road Transport (General) Regulation 2005 ("the RTG Regulation"). Since the time of the events in question, that legislation has been repealed, and has been replaced by the Heavy Vehicle National Law (NSW) - No.42a, which came into effect in NSW on 10 February 2014.

1. The purpose of the provisions under the road transport legislation was to regulate the use of heavy vehicle transport in a number of ways so as to improve the safety of all road users, and the travelling public.

1. One of the ways in which the legislation addressed this issue, was to address the fatigue of drivers. Part 6 of the RTG Regulation deals with heavy vehicle driver fatigue. By clause 45 of the RTG Regulation, the driver of a regulated heavy vehicle, must not drive such a vehicle "while he or she is impaired by fatigue". By clause 46 of the RTG Regulation, any party in the "chain of responsibility" must take all reasonable steps to ensure that a person does not drive the vehicle on a road while the person is impaired by fatigue.

1. Clause 44 of the RTG Regulation deals with impairment by fatigue. It is in the following form:

"44. What is impaired by fatigue?

1. A driver is impaired by fatigue if the driver's ability to drive a vehicle safely is affected by fatigue.

2. When deciding whether a driver was impaired by fatigue, a court may take into account anything it considers is relevant, including (but not limited to) the following:

(a) any relevant cause of fatigue or sign of fatigue that was evident, and the degree to which it may indicate that the driver was impaired by fatigue;

(b) any behaviour of the driver that may have resulted from being impaired by fatigue;

(c) the nature and extent of any physical or mental exertion by the driver;

(d) whether the driver was in breach of his or her work and rest hours.

3. A court may consider a driver to be impaired by fatigue even if the driver has complied with any requirements under this Part (for example, the standard hours) or under any other legislation."

1. Clause 49 of the RTG Regulation deals with duties falling on employers and operators. It is in the following form:

"49 Duties on employers, prime contractors and operators

(1) This clause applies to:

(a) the employer of an employed driver of a regulated heavy vehicle, and

(b) the prime contractor of a self-employed driver of a regulated heavy vehicle, and

(c) the operator of the regulated heavy vehicle if the driver is to make a journey for the operator.

(2) The employer, prime contractor and operator each must take all reasonable steps to ensure that the employer's, prime contractor's or operator's business practices will not cause, by act or omission, the driver:

(a) to drive on a road or road related area while impaired by fatigue, or

(b) to drive while in breach of his or her work and rest hours option, or

(c) to drive in breach of another law in order to avoid driving while impaired by fatigue or while in breach of his or her work and rest hours option.

Maximum penalty:

(a) in the case of an individual-20 penalty units (in the case of a first offence) or 40 penalty units (in the case of a second or subsequent offence), and

(b) in the case of a corporation-100 penalty units (in the case of a first offence) or 200 penalty units (in the case of a second or subsequent offence).

(3) The employer must not cause the driver to drive the vehicle unless:

(a) the employer has complied with subclause (2), and

(b) the employer, after making reasonable inquiries, is satisfied that the scheduler has complied with clause 50.

Maximum penalty:

(a) in the case of an individual-15 penalty units (in the case of a first offence) or 30 penalty units (in the case of a second or subsequent offence), and

(b) in the case of a corporation-75 penalty units (in the case of a first offence) or 150 penalty units (in the case of a second or subsequent offence).

(4) ...

(5) A person accused of an offence under this clause does not have the benefit of the mistake of fact defence.

(6) In this clause, business practices of an employer, prime contractor or operator, means the practices of the employer, prime contractor or operator in running the business, and includes:

(a) the operating policies and procedures of the business, and

(b) the human resource and contract management arrangements of the business (including the method by which driver remuneration is calculated), and

(c) arrangements for managing safety."

1. People employed as, or carrying out the duties of, schedulers have obligations imposed by Clause 50 of the RTG Regulation. Clause 50 is in the following form:

"50 Duties of schedulers

(1) This clause applies to the scheduler of:

(a) a regulated heavy vehicle, or

(b) a driver of a regulated heavy vehicle.

(2) The scheduler must take all reasonable steps to ensure that a driver's schedule for driving the vehicle will not cause, by act or omission, the driver:

(a) to drive on a road or road related area while impaired by fatigue, or

(b) to drive while in breach of his or her work and rest hours option, or

(c) to drive in breach of another law in order to avoid driving while impaired by fatigue or while in breach of his or her work and rest hours

Maximum penalty:

(a) in the case of an individual-20 penalty units (in the case of a first offence) or 40 penalty units (in the case of a second or subsequent offence), and

(b) in the case of a corporation-100 penalty units (in the case of a first offence) or 200 penalty units (in the case of a second or subsequent offence).

(3) The scheduler must not cause the driver to drive the vehicle unless:

(a) the scheduler has complied with subclause (2), and

(b) the driver's schedule for driving the vehicle allows for:

(i) the driver to take rest breaks in accordance with his or her work and rest hours option, and

(ii) traffic conditions and other delays that could reasonably be expected.

Maximum penalty:

(a) in the case of an individual-15 penalty units (in the case of a first offence) or 30 penalty units (in the case of a second or subsequent offence), and

(b) in the case of a corporation-75 penalty units (in the case of a first offence) or 150 penalty units (in the case of a second or subsequent offence).

(4) A person accused of an offence under this clause does not have the benefit of the mistake of fact defence."

1. Division 3 of Part 6 of the RTG Regulation deals with work and rest times.

1. In broad terms, work time includes not just the time that drivers spend driving a regulated heavy vehicle on a road, but also includes other times that the driver spends doing tasks that are related to the operation of a regulated heavy vehicle, including loading or unloading of the vehicle, cleaning or refuelling the vehicle and, as well inspecting, servicing or repairing the vehicle.

1. Division 3 of the RTG Regulation, by Clause 64, provides for standard work hours for drivers of regulated heavy vehicles. Simply put, in a total period of 24 hours, the maximum work time for a driver is 12 hours. The minimum rest time is seven continuous hours. In any seven day period (168 hours), the maximum work time is 72 hours, and the minimum rest time is 24 continuous hours.

1. Clause 64 provides that if a driver works more than 13.5 hours in any period of 24 hours, the offence is categorised as carrying a critical risk. In a seven day period, if a driver works more than 75 hours, the offence is categorised as having a critical risk.

1. Any penalty which may be imposed for a breach of standard hours provisions depends upon the degree of risk which accompanies the breach. Where the risk is a critical risk offence, then in the case of a first offence, the maximum penalty is 25 penalty units; in the case of a second or subsequent offence, the maximum offence is 50 penalty units.

1. Under s 178 of the RTG Act, a director may be taken to have committed an offence if the body corporate has done so. Section 178 is in the following form:

"178 Liability of directors, partners, employers and others for offences by bodies corporate, partnerships, associations and employees

(1) If a body corporate commits an offence under the road transport legislation, each director of the body corporate, and each person concerned in the management of the body corporate, is taken to have committed the offence and is punishable accordingly.

...

(4) If an employee commits an applicable road law offence, the employer is taken to have committed the offence and is punishable accordingly.

(4A) Subsections (1), (2), (3) and (4) do not apply in respect of an offence under a provision of a regulation made under the road transport legislation that is declared by such a regulation to be an excluded provision for the purposes of this section.

(5) This section does not affect the liability of the person who actually committed the offence.

(6) A person may be proceeded against and found guilty of an offence arising under this section whether or not the body corporate or other person who actually committed the offence has been proceeded against or been found guilty of the offence.

(7) It is a defence to a prosecution for an offence arising under subsection (1) if the defendant establishes that:

(a) the defendant was not in a position to influence the conduct of the body corporate in relation to the actual offence, or

(b) the defendant, being in such a position, took reasonable precautions and exercised due diligence to prevent the commission of the actual offence.

..."

1. Insofar as Mr and Mrs Spiteri are charged with offences in their capacity as a director of the Company, those charges are brought pursuant to s 178(1) of the RTG Act. Insofar as Mr Spiteri and Mr Jason Roberts are the subject of charges which relate to their duties as schedulers, then those charges are brought pursuant to cl 50(2)(a) or clause 50(2)(b) of the RTG Regulation.

1. Insofar as the Company is the subject of charges, those charges are brought pursuant to cl 49(2)(a) of the RTG Regulation, cl 50(2)(a) of the RTG Regulation and cl 50(2)(b) of the RTG Regulation. In one case, the Company is also charged by reference to the provisions of s 178(4) of the RTG Act.

Factual Context

1. It will be apparent from the charges to which pleas have been entered, and from the Statements of Agreed Facts, that at various times, and on various dates, particular drivers drove for periods in excess of the standard work hours, and drove whilst affected by fatigue. There was no dispute at the hearing of the sentence proceedings that the named drivers had driven regulated heavy vehicles on the road for the number of hours specified, or else whilst affected by fatigue.

1. There was also no dispute that the drivers were driving on those dates for the periods specified because they were scheduled to do so, either by Mr Spiteri, or by Mr Roberts. Nor was there any dispute that Mr Spiteri in his capacity as a director could have, but did not, take steps to address these business practices and change them. So far as Mrs Spiteri is concerned the evidence is sparse, but the proof of the charge was constituted by the fact that she was a director, and in the case of the single charge preferred against her, that the Company was in breach of its obligations.

1. In those circumstances, it is appropriate to set out in tabular form the details of the dates, the working hours, the nature of the charge and which defendant is proceeded against, together with a record of the Summons containing the charge and the applicable maximum penalties. The contents of this table were provided by the prosecution, and agreed as correct by the defendants.

1. It will be apparent from this table that, as the evidence ultimately demonstrated, prior to the audit of the RMS in April 2010, the Company had taken no steps at all to implement any business practice which in any way addressed any fatigue related issue, or which attempted to comply with the reasonable working hours requirements of the RTG Regulation.

1. After the RMS audit, the Company sought external advice in order to create systems which would address these matters as part of the Company's business. But that was the first occasion when it was done.

1. Prior to the RMS audit, the Company left the question of working hours and fatigue to individual drivers, in particular, it left it to individual drivers to take breaks as and when they saw fit. However, when a driver's vehicle was stationary for an identifiable period, contact was generally made with the driver by the scheduler or the office staff of the Company to enquire why the vehicle was not moving. This contact could occur because each truck was fitted with a GPS tracking system which could be observed from the Company's office.

1. As well, no real attention was paid to the safety consequences of drivers starting their shifts early in the morning, or driving through to late hours in the evening. Notwithstanding that, as is apparent from the legislation, issues relating to fatigue management and standard working hours were prominent in the heavy trucking industry. Since at least 2005, if not for many years prior to that time, the Company, its directors and responsible staff, simply ignored their lawful obligations.

1. On any view the number of occasions and the extent of the excess hours being worked by truck drivers in the Company as seen from the details underlying the charges, demonstrate plainly that this was a company that did not address its legal obligations.

1. For reasons which will become apparent, I have accepted the submissions of senior counsel for the defendants that this was largely a "one person" company, with the consequence that the responsibility for this inaction rests substantially at the feet of Mr Spiteri.

Details of Offences

Driver	Date of Offence	Time	Summons	Clause	Defendant	Maximum Penalty
Attard, Christopher	5/3/2010	3.37 am	2011/407563 Fatigue	50(2)(a)	Peter Spiteri	1st offence: Individual $2,200.00
Attard, Christopher	5/3/2010	3.37 am 15 h 30 m	2011/407599 Work Hours	50(2)(b)	Peter Spiteri	1st offence: Individual $2,200.00
Attard, Christopher	15/3/2010 -21/3/2010	92 h 59 m out of 168 h	2011/407520 Work Hours	49(2)(b) / 64 / s 178(1)	Peter Spiteri	2nd offence: Individual $4,400.00
Attard, Christopher	25/3/2010	3.06 am	2011/407572 Fatigue	49(2)(a) /s 178(1)	Peter Spiteri	2nd offence: Individual $4,400.00
Attard, Christopher	25/3/2010	3.06 am	2011/407623 Fatigue	50(2)(a)	Jason Roberts	2nd offence: Individual $4,400.00
Attard, Christopher	30/3/2010	3.00 am 19 h	2011/407520 Work Hours	49(2)(b) / 64 / s 178(1)	Peter Spiteri	2nd offence: Individual $4,400.00
Attard, Christopher	30/3/2010	3.00 am 19 h	2011/407636 Work Hours	50(2)(b) / 64	Jason Roberts	2nd offence: Individual $4,400.00
Day, Benjamin	17/3/2010 -18/3/2010	12.53 am on 17/3/10	2011/407572 Fatigue	49(2)(b) / s 178(1)	Peter Spiteri	2nd offence: Individual $4,400.00
Day, Benjamin	17/3/2010 -18/3/2010	12.53 am on 17/3/10	2011/407623 Fatigue	50(2)(a)	Jason Roberts	2nd offence: Individual $4,400.00
Day, Benjamin	26/3/2010	3.01 am	2011/407623 Fatigue	50(2)(a)	Jason Roberts	2nd offence: Individual $4,400.00
Day, Benjamin	26/3/2010	3.01 am	2011/407572 Fatigue	49(2)(a) / s 178(1)	Peter Spiteri	2nd offence: Individual $4,400.00
Day, Benjamin	31/3/2010	1.13 am 21 h 30 m	2011/407636 Work Hours	50(2)(b) / 64	Jason Roberts	2nd offence: Individual $4,400.00
Day, Benjamin	31/3/2010	1.13 am 21 h 30 m	2011/407560 Work Hours	50(2)(b) / 64 / s 178(4)	SPSS	1st offence: Corporation $11,000.00
Day, Benjamin	1/4/2010	5.52 am 15 h 34 m	2011/407520 Work Hours	49(2)(b) / 64 s 178(1)	Peter Spiteri	2nd offence: Individual $4,400.00
Day, Benjamin	29/3/2010 - 4/4/2010	78 h 49 m out of 168 h	2011/407520 Work Hours	49(2)(b) / 64 s 178(1)	Peter Spiteri	2nd offence: Individual $4,400.00
Day, Mathew	15/3/2010 -21/3/2010	79 h 13 m out of 168 h	2011/407520 Work Hours	49(2)(b) / 64 s 178(1)	Peter Spiteri	2nd offence: Individual $4,400.00
Day, Mathew	26/3/2010	1.31 am - 4.48 pm	2011/407623 Fatigue	50(2)(a)	Jason Roberts	2nd offence: Individual $4,400.00
Day, Mathew	26/3/2010	1.31am -4.48 pm	2011/407572 Fatigue	49(2)(a) / s 178(1)	Peter Spiteri	2nd offence: Individual $4,400.00
Day, Mathew	31/3/2010	4.48 am 17 h 28 m	2011/407560 Work Hours	50(2)(b) / 64 / s 178(4)	SPSS	2nd offence: Corporation $22,000.00
Day, Mathew	31/3/2010	4.48 am 17 h 28 m	2011/407636 Work Hours	50(2)(b) / 64	Jason Roberts	2nd offence: Individual $4,400.00
Day, Mathew	1/4/2010	4.52 am 17 h 43 m	2011/407520 Work Hours	49(2)(b) / 64 s 178(1)	Peter Spiteri	2nd offence: Individual $4,400.00
Day, Stephen	15/3/2010 -21/3/2010	79 h 46 m out of 168 h	2011/407520 Work Hours	49(2)(b) / 64 s 178(1)	Peter Spiteri	2nd offence: Individual $4,400.00
Day, Stephen	31/3/2010	4.11 am	2011/407531 Fatigue	50(2)(a) / s 178(4)	SPSS	2nd offence: Corporation $22,000.00
Day, Stephen	31/3/2010	4.11 am 14 h	2011/407560 Work Hours	50(2)(b) / 64 / s 178(4)	SPSS	2nd offence: Corporation $22,000.00.
Day, Stephen	31/3/2010	4.11 am	2011/407623 Fatigue	50(2)(a)	Jason Roberts	2nd offence: Individual $4,400.00
Day, Stephen	31/3/2010	4.11 am 14 h	2011/407636 Work Hours	50(2)(b) / 64	Jason Roberts	2nd offence: Individual $4,400.00
Day, Stephen	1/4/2010	5.52 am 15 h 33 m	2011/407520 Work Hours	49(2)(b) / 64 / s 178(1)	Peter Spiteri	2nd offence: Individual $4,400.00
Day, Stephen	2/4/2010	5.43 am	2011/407510 Fatigue	49(2)(a)	SPSS	2nd offence Corporation $22,000.00
Day, Stephen	2/4/2010	5.43 am	2011/407572 Fatigue	49(2)(a) / s 178(1)	Peter Spiteri	2nd offence: Individual $4,400.00
Formosa, Brian	15//3/2010 -21/3/2010	85 h 21 m out of 168 h	2011/407520 Work Hours	49(2)(b) / 64 s 178(1)	Peter Spiteri	2nd offence: Individual $4,400.00
Formosa, Brian	31/3/2010	3.00 am	2011/407531 Fatigue	50(2)(a) / s 178(4)	SPSS	2nd offence: Corporation $22,000.00
Formosa, Brian	31/3/2010	3.00 am	2011/407623 Fatigue	50(2)(a)	Jason Roberts	2nd offence: Individual $4,400.00
Formosa, Brian	31/3/2010	17 h 31 m	2011/407636 Work Hours	50(2)(b) / 64	Jason Roberts	2nd offence: Individual $4,400.00
Formosa, Brian	31/3/2010	17 h 31 m	2011/407560 Work Hours	50(2)(b) / 64 / s 178(4)	SPSS	2nd offence: Corporation $22,000.00
Formosa, Brian	1/4/2010	5.03 am	2011/407510 Fatigue	49(2)(a)	SPSS	2nd offence Corporation $22,000.00
Formosa, Brian	1/4/2010	5.03 am	2011/407572 Fatigue	49(2)(a) / s 178(1)	Peter Spiteri	2nd offence: Individual $4,400.00
Formosa, Brian	2/4/2010	4.21 am 16 h 4 m	2011/407520 Work Hours	49(2)(b) / 64 s 178(1)	Peter Spiteri	2nd offence: Individual $4,400.00
Fosse, Craig	5/3/2010	4.46 am 14 h 12 m	2011/407636 Work Hours	50(2)(b) / 64	Jason Roberts	1st offence: Individual $2,200.00
Fosse, Craig	5/3/2010	4.46 am 14 h 12 m	2011/407520 Work Hours	49(2)(b) / 64 s 178(1)	Peter Spiteri	2nd offence: Individual $4,400.00
Fosse, Craig	5/3/2010	4.46 am 14 h 12 m	2011/407656 Work Hours	49(2)(b) / 64 s 178(1)	Tienie Spiteri	1st offence: Individual $2,200.00

1. As these details show, the conduct subject to the charges is contained within a period of about a month, and involves the driving of six individual drivers, which is a significant proportion (over 40 per cent) of the permanent driver work force of the Company.

1. It is proper to infer from the number and date spread of these offences, the explanations proffered by the defendants and that they had no systems or practices in place which addressed issues relating to fatigue, that these offences could not be regarded as "one-off" or isolated offences. These offences are properly to be regarded as examples drawn from the period examined by the RMS officers, shortly prior to the commencement of its audit.

1. That does not mean that in imposing a sentence for these offences, the defendants are being punished for conduct which has not been charged against them. To the contrary, this conclusion serves to place the offences and their criminality into the true context of what was happening (or not happening) at South Penrith as it went about its day-to-day business.

One Person Company

1. The Company and Mr Spiteri submitted that the principles applicable to the charging of a company and its directors, where in truth the Company was a one person company, are applicable here. Specifically, it was put by senior counsel for the defendants that Mr Spiteri was the "physical emanation" of the Company.

1. The Company is owned by Mr and Mrs Spiteri who had at the time of the offences, one share each. They were each directors, although it seems clear that Mr Spiteri was the active director in and about the conduct of the business of the Company. To the extent that Mrs Spiteri attended, which was on a couple of days a week, she undertook administrative tasks, and had nothing to do with the operations of the heavy vehicles.

1. The legal principles to which attention is drawn are those which exist to avoid punishing the owners of a company twice over. Where a company is in substance the business alter ego of an individual, that is, a "one person company", and both the company and its owner face monetary penalties for the same conduct which underlies separate offences, then there is a risk that the individual will be doubly punished because the imposition of a monetary penalty on the company, which affects its financial position, will diminish the individual's valuable interest in the company. As well, the individual will be subject to a monetary fine in their individual capacity.

1. Accordingly, it is relevant to take the relationship which here exists between the Company and Mr Spiteri into account to avoid double punishment.

1. As Sackville J said in Minister for the Environment and Heritage v Greentree (No.3) [2004] FCA 1317 at [78], having described the factual circumstances that the company in question was a "one-person company":

"78. I infer that Mr Greentree will bear the burden of any diminution of Auen's assets that will result from the imposition of a pecuniary penalty on the company. It is appropriate to take that fact into account in order to prevent Mr Greentree being punished, in effect, twice over: Australian Competition and Consumer Commission v ABB Transmission and Distribution Ltd (No 2) (2002) 190 ALR 169, at 182 [45], per Finkelstein J; Australian Securities and Investments Commission v Adler (2002) 42 ACSR 80, at 116-117 [131]-[132], per Santow J. On the other hand, Auen has been involved in a deliberate contravention of s 16(1) of the EPBC Act. The contravening conduct was undertaken in Auen's commercial interests. It is also necessary to bear in mind that the maximum penalties that can be imposed on a corporation are ten times larger than the penalties that can be imposed on individuals who contravene the EPBC Act. The overall pecuniary penalty should obviously be no less than if Auen, a corporation, had been the sole contravenor. On the contrary, the overall penalty should reflect the fact that Mr Greentree, as well as Auen, has contravened s 16(1) of the EPBC Act."

See also: The Hills Shire Council v Kinnarney Civil & Earthworks Pty Ltd (No.2) [2012] NSWLEC 95 at [39]-[41].

1. Here, because of the facts which are described below, the risk of double counting is a small one because the company has few remaining assets, and the impact of financial diminution of the Company on Mr Spiteri is slight. Nevertheless, particularly in light of his evidence that he would pay any fine imposed on the Company, I will keep it in mind, and take proper account of it.

1. The prosecution accepted that with respect to the offences to which the Company pleaded guilty, and to which Mr Spiteri pleaded guilty, where the offences were in substance the same, that the Court should apply the principle so as to avoid double punishment.

Single Act of Criminality

1. Another aspect of the submissions of senior counsel for the defendant, was that double punishment needed to be avoided in the circumstances here by imposition of fines for each separate offence because each offence was the product of a single act of criminality. Evidence revealed what, in substance, was said to be a single failure which led to all of the charges, namely the failure by Mr Spiteri as the controlling principal of the Company to institute any fatigue management system in order to ensure compliance with the legislation prior to the RMS audit. In short, senior counsel submits that each individual offence is the inevitable product of the lack of a proper business system of fatigue management which would address both the requirements of reasonable work hours and avoiding driver fatigue.

1. The prosecution agreed that the proper conclusion for the Court to draw from the facts was that the Court would, when seeking to understand the true criminality involved in the offence, conclude that they all derived from a single course of conduct, namely a failure to address and implement a system of fatigue management. The prosecution accepted that this single course of conduct approach was consistent with the manner in which the prosecution had conducted its case. However, it did not accept that this meant that in substance there was only one offence.

1. It does not seem to me, accepting this position, that no penalty ought be imposed with respect to some, or perhaps most, of the charges. Such an approach would not adequately recognise that each charge represents an occasion of criminality, and an occasion when the road users and travelling public were potentially put at risk by sharing the road with a driver who was, or was at risk of, being affected by fatigue, and thus presented a potential danger to all other road users. When such a driver is driving a heavy vehicle, here over 12 tonnes GVM, the potential for harm is significant.

1. As well, the Court in imposing any sentence where more than one offence is involved, is required to ensure that the principle of totality is adhered to: Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 at [40] per McHugh, Hayne and Callinan JJ; Mill v The Queen [1998] HCA 70; (1988) 166 CLR 59 at [8] per Wilson, Deane, Dawson, Toohey and Gaudron JJ. The effect of adherence to this principle will ensure that the fines ultimately imposed reflect the criminality involved.

The Change in South Penrith's Financial Position

1. In the financial year ended 30 June 2010, South Penrith had total revenue of almost $6.5 M. It had a significant number of trucks and trailers to carry out its business.

1. It used to own the land from which the business operated. According to the evidence of Mr Spiteri, at a time prior to March 2010, although he was not sure when, the two properties which were used by the Company as its trucking bases, were transferred from the Company to the Spiteri Family Superannuation Fund.

1. By the end of the 30 June 2013 financial year, the Company's position was very different. On 14 November 2012, it sold the whole of its business undertaking and all of its assets, including goodwill, to a company which presently trades as Penrith Sand & Soil. This new company is wholly unrelated to any of the current defendants.

1. According to the evidence of Mr Gatt, who is, and has been for some years, the accountant for the defendants (except Mr Roberts), the effect of the sale was that all liabilities, whether current or non-current, were paid in full and a capital gain of $784,000, which related to the sale of the goodwill valued at $800,000 on a cost base of $16,000, was paid out to the Spiteri Family Superannuation Fund for the benefit of Mr and Mrs Spiteri. The payment disbursed in this way, did not become liable for capital gains tax.

1. The documentary evidence also suggested that other funds must have been received and disbursed, but Mr Gatt's evidence was quite unsatisfactory as to what happened to these amounts.

1. However, it is clear that the current position is that the Company has about $15,000 in the bank. It does not conduct any business activities, and has no source of income. The end result is that the Company cannot pay anymore than $15,000 by way of fines unless an external contribution is made. Although Mr Spiteri said that it was his intention so to do, neither he nor his wife are under any legal obligation to make any contribution to the Company, and it may simply be put into liquidation.

1. In these circumstances the issue of double penalty to which Sackville J referred in Greentree (No.3), has limited weight. In short, even if Mr Spiteri was to lose the entirety of his remaining investment in the Company because it has to pay one or more fines, that loss would not in the overall picture be a significant one, having regard to the careful steps taken since 2010, to realise the value of his investment as a shareholder of the Company.

Principles of Sentencing

1. 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.

1. 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.

1. 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.

1. 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.

1. This is a case where, given the nature of the offences, the fact that they involved heavy transport vehicles, and occurred on public roads, the principle of general deterrence must play an important role. In these circumstances, the condign punishment of Mr Spiteri and the Company will operate as a general deterrence for others who, or which, operate heavy transport vehicles on the public roads of NSW from committing breaches of transport legislation which is directed at enhancing road safety.

1. Given that South Penrith, and the other defendants, are no longer operating in the heavy transport industry, the need for specific deterrence is somewhat limited.

Seriousness of the Offences

1. It is appropriate to make an assessment of the seriousness of the offences and the conduct of Mr Spiteri, the Company and the other defendants. This assessment does not have regard to matters personal to each defendant, but is to be determined by reference to the nature of the offending: Muldrock at [27].

1. The RTG Act and the RTG Regulation address issues of the safety of road users of public roads. They address issues of the safety of the travelling public. Fatigue management is one of the ways in which in the heavy transport industry this safety is addressed and ensured.

1. Fortunately, none of these offences involved any actual injury, loss or damage. However, the potential for such injury, loss or damage was significant. There can be no doubt that when a driver of a heavy vehicle is engaged in working for 19 hours in a day, such as in the case of Mr Christopher Attard on 30 March 2010, when he started at 3am and finished at 10pm, for every kilometre which he drove on the public road on that day, every other road user was placed at risk. The fact that no collision occurred was a matter of good fortune and chance.

1. Mr Spiteri's failure to inform himself about and take advice upon, the road transport legislation, insofar as it affected the safety of his company's commercial operations, was a course of conduct which simply, and in a wholesale way, failed to address not only his legal obligations, but also matters of common sense, such as tiredness and fatigue of drivers who drove very long hours.

1. In Mr Spiteri's case, it was clear from his evidence that he accepted that there were records created within the Company which contained all of the relevant details which would have enabled him to address issues of fatigue management had he wished so to do. As senior counsel for the defendants admitted, there was a facility with the Company could have used for fatigue management purposes, but did not.

1. The complete failure by Mr Spiteri, even though there was a capacity to do so, to address issues of fatigue management for the drivers employed by the Company, was in my assessment a very serious failure. It is near the top end of the range of seriousness for offences of this kind.

1. Similarly, because the Company was the operating business entity, its failure to address fatigue management was also serious. However, accepting as I do, senior counsel for the defendant's submissions that the Company was a "one person company", that is, the conduct of its affairs in the area of operations and operational safety, was undertaken by Mr Spiteri who made all of the relevant decisions, the Company's criminality and conduct is the consequence of, and derives from, Mr Spiteri's conduct and his failure to adequately address the legal obligations for operators of heavy vehicles under the road transport legislation. However, the Company is an independent legal entity. Its criminality is akin to that of Mr Spiteri.

1. Mr Roberts was an employed scheduler, who did not receive any formal training with respect to his duties as such. He acted in accordance with the system in place, which he was not really in a position to significantly change. Mr Roberts' criminality is less serious than that of Mr Spiteri and the Company. I assess it as below the mid-range for offences such as these.

1. Mrs Spiteri, although a director of the Company, left the operations of the Company to her husband. So far as the evidence shows, she had no experience in heavy transport operations. It does not appear that the directors of the Company held formal or regular meetings at which the affairs of the Company were discussed. No minutes of any meetings of directors have been tendered in evidence.

1. I consider that in all the particular circumstances here, the seriousness of the criminality for the single offence with which Mrs Spiteri has been charged is low.

Statutory Aggravating Factors

1. Section 21A(2) of the Crimes (Sentencing Procedure) Act contains a number of matters which are prescribed as aggravating factors to which this Court is to have regard, and take into account.

1. The aggravating factors are largely irrelevant to the offences here, and the facts and circumstances underlying the offences. However, s 21A(2)(i) does provide that an aggravating factor exists where the offence "... was committed without regard for public safety". Here, the offences occurred in circumstances where the defendants, other than Mrs Spiteri, completely failed to have regard to public safety. I will take this into account.

Statutory Mitigating Factors

1. Section 21A(3) of the Crimes (Sentencing Procedure) Act lists a number of mitigating factors to which the Court must have regard, and which it must take into account.

1. First, I note and will have regard to the fact that none of the defendants have any record of previous convictions: s 21A(3)(e).

1. Secondly, I note and will have regard to the fact that, on the limited material available, that each of Mr and Mrs Spiteri, and Mr Roberts are persons of good character: s 21A(3)(f).

1. The evidence shows, as I have earlier described, that the Company has sold the business and no longer operates. Mr and Mrs Spiteri have retired from any involvement in the business of South Penrith and have no association with the new company. Mr Roberts is not employed by the new company which operates the business formerly conducted by South Penrith. He works as a consultant, although it is not clear in what industry. However, having regard to the systems implemented after the RMS audit by the Company, and his close participation in them, I am satisfied that he is unlikely to re-offend. I am also satisfied that in the circumstances which now exist, the Company and Mr and Mrs Spiteri are also unlikely to re-offend: s 21A(3)(g).

Plea of Guilty

1. It is clear that when the RMS officers attended to conduct their audit, the Company and Mr Spiteri made it clear that they did not have any systems in place to deal with fatigue management issues.

1. In April 2012, the solicitors for the defendants, except Mrs Spiteri, indicated by filing a document entitled "Memorandum of Plea" on 2 April 2012, that the three defendants would plead guilty to a number of charges. The Memorandum indicated that some charges would be the subject of legal argument as to whether they were valid. The Memorandum made plain that the defendants would plead guilty to such of these disputed charges as the Court found were validly preferred.

1. On 2 April 2012, the defendants filed a Notice of Motion which was intended to bring about an early determination of which charges were validly brought.

1. On 20 November 2012, Barr AJ made orders with respect to the challenges made to the various charges. The effect of that judgment was that two Summonses, each containing 11 charges, were dismissed, and in various other Summonses, a total of 14 other charges were dismissed. In respect of these dismissed Summonses and charges, Barr AJ held in his reasons, delivered on 9 November 2012, that it was not open to the prosecutor to proceed with charges where an abuse of process would occur.

1. After the Court made orders on 20 November 2012, on 23 November 2012 the defendants, except Mrs Spiteri, filed a further Memorandum of Plea, in which they indicated that they would plead guilty to the remaining extant charges. The Memorandum noted that the defendants maintained their earlier pleas of guilty, and pleaded guilty to the identified extant charges.

1. By letter dated 18 December 2012, the solicitors for Mrs Spiteri for the first time indicated that she intended to plead guilty to the charge against her on the next occasion when the matter was before the Court.

1. The prosecution accepts that the pleas which were indicated in April 2012, were entered at the earliest practicable time.

1. The prosecution did not accept that the pleas which were entered in November 2012, were entered at the earliest practicable time. Counsel submitted that the pleas were only entered because of the decision and orders of Barr AJ. The prosecution submitted that the Court, with respect to these charges, could not take into account the earlier offer to plead to the charges which the Court subsequently held were valid.

1. Senior counsel for the three defendants submitted that there was little more the defendants could do to facilitate the administration of justice, in circumstances where they had a legitimate legal argument that the conduct of the prosecutor amounted, in many instances, to an abuse of the Court's process. Accordingly, he submitted that any delay which enabled those questions to be determined ought not to be held against them by the Court not allowing a full discount.

1. Section 22 of the Crimes (Sentencing Procedure) Act provides that a court must take into account not just the fact of when an offender pleads guilty, but also when an offender "...indicated an intention to plead guilty ...".

1. Although the pleas which were in fact entered in November 2012 were later than those entered earlier in April 2012, I am satisfied that the earlier Memorandum, and the correspondence at the time, all indicated sufficiently for the purpose of the legislation an intention to plead guilty. Accordingly, in respect of those three defendants, I am satisfied that the same discount should apply to all of the charges to which they have pleaded guilty.

1. In so finding, I am conscious of the authorities which require the Court to concentrate upon the timing of a plea as the principal basis for the discount allowed: see R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1. I am also conscious of the requirement to separately consider the utilitarian value of pleas entered at different times: see Regina v SY [2003] NSWCCA 291. I am also conscious of the fact that the reason for the delay is generally irrelevant: see Regina v Stambolis [2006] NSWCCA 56; (2006) 160 A Crim R 510.

1. However, this is an exceptional case because up until the reasons of Barr AJ were delivered, the prosecution persisted, unreasonably in my assessment, in pursuing a range of charges which were not open to it. I am satisfied that there was real utilitarian value in the indication in April 2012 of an intention to plead guilty, and that in this exceptional case, the same discount ought to apply. In my assessment, the appropriate discount for all defendants, except Mrs Spiteri, is 25 per cent.

1. Mrs Spiteri's first indication was much later, but nevertheless before the proceedings were fixed for hearing. To recognise the utilitarian value of Mrs Spiteri's plea, I propose to allow a discount of about 15 per cent.

Fines Act 1996

1. Section 6 of the Fines Act 1996 provides that a court, when considering the amount of a fine which is to be fixed, must consider such information about the means of an offender as may be made available, and such other matters as the Court considers relevant.

1. I have already noted that the Company has about $15,000 remaining in its bank account. It does not have any reason for spending this money, other than on payments of any fine imposed by the Court.

1. Mr and Mrs Spiteri have retired from conducting the business of South Penrith. The capital gain from the sale of the business has been paid into a superannuation fund of which they are beneficiaries. This was a sum of $784,000. There is no additional information about their assets and liabilities, or their income or expenditure. It is not submitted on their behalf that there is anything about their financial position which ought to have a moderating role on the sum of any fine which would otherwise be fixed by the Court.

1. The evidence of Mr Roberts about his financial position is unchallenged. He has a modest and, because he is employed as a contractor, intermittent income. He has little, if any, savings. He is in a position to afford only a modest fine.

Other Matters of Mitigation

1. The Company and Mr Spiteri submit that their early acceptance of culpability, their prompt response to remedy the position by retaining a safety and compliance consultant, their early formal pleas of guilty, when combined with the evidence of Mr Spiteri, demonstrate contrition and remorse.

1. Mr Roberts also submits that his early acceptance of the lack of appropriate diligence on his part, and his early indication of guilty pleas demonstrates contrition and remorse.

1. The evidence of Mr Spiteri was that for a period of about four years he had wanted to sell the business. Although not entirely clear, it seems that this wish, and the existence of one possible buyer pre-dated the accidents which caused the RMS audit to occur. His evidence then seems to be that the existence of the charges, and the fact that he "... was hurt a lot by this incident" increased his sense of pressure, and this led to him selling the business when he was approached by the purchaser, and now current owner.

1. Whilst I accept that Mr Spiteri finally came to a sale of the business in these circumstances, I do not see that his evidence bespeaks remorse or contrition. I accept that he was hurt by what happened, but that effect, whilst it may be relevant to the impact generally of the events and these proceedings upon him, does not establish contrition or remorse.

1. The steps taken after the RMS audit to make the business affairs of the Company compliant with the legislation are commendable, and will be taken into account. It is also submitted that an administrative officer of the Company provided assistance to the authorities during the RMS audit. That is undoubtedly so. But in the circumstances, whilst I will have regard to that conduct, it does not merit significant weight.

1. To the extent that the pleas of guilty contained an expression of remorse, I will take that into account for all defendants.

Discernment

1. The conduct of the business of South Penrith in respect to issue of fatigue management was seriously defective. Mr Spiteri must bear the principal responsibility for this. It was his failure as the director responsible for the conduct of the trucking operations to pay attention to the requirements of the law. Had he done so, none of these offences would have occurred.

1. The extent of the work hour breaches are accepted by the defendants as being critical risk offences. The fatigue offences are in no different position. The objective seriousness of the offences of Mr Spiteri and the Company was at a significant level. For Mr Roberts it is somewhat less. The objective seriousness of the offence of Mrs Spiteri was low. I have also had regard to the subjective circumstances of each of Mr and Mrs Spiteri, and Mr Roberts.

1. It is necessary to consider each of the offences and impose a penalty appropriate in all the circumstances which have been discussed earlier. In particular, it is necessary to keep in mind, as between the Company and its director, Mr Spiteri, that he should not be doubly punished. It is also necessary to keep in mind and apply the appropriate discount for the pleas of guilty to which I have earlier given attention.

1. Although all of the offences are serious, not all are equal in terms of the extent of the breaches of the legislation dealing with work hours. Some allowance must be made for such differences and some penalties will be higher to reflect these differences.

1. As well, in the case of some drivers and some breaches, there will be two offences against the same defendant arising from substantially the same facts. By of way of example, Mr Roberts is charged with respect to Mr Stephen Day's driving on 31 March 2010 with both a breach of cl 50(2)(a) and cl 50(2)(b) of the RTG Regulation. In imposing a fine for such offences, it will be necessary to keep in mind that whilst each are individual offences, the offending conduct is substantially the same, namely that Mr Day drove in excess of the minimum specified hours on that day.

1. Whilst the principles of sentencing stand against a mechanistic or mathematical approach, it is appropriate, in these unusual circumstances, and in light of the large number of charges with which the Court has to deal, to explain my broad approach to sentencing each of the defendants.

1. In Mr Spiteri's case I have generally imposed a fine of 50 per cent of the maximum available. Where a second offence has been charged with respect to the same driver and the same date, the second fine is 25 per cent of the maximum available. In a number of cases where I have formed the view that the breaches were more serious the fines imposed have been higher.

1. In the case of South Penrith, I have imposed penalties which reflect the fact that, on the one hand, the Company was the principal operator of the business, but on the other, Mr Spiteri was in real control and the Company was essentially a one person company.

1. It is inappropriate to impose a fine on the Company so that Mr Spiteri is doubly punished. For that reason the fine has generally been fixed for the Company at 30 per cent of the maximum. If there is a second offence arising out of the same driver's conduct on the same date, that second offence is fixed at 15 per cent of the maximum.

1. With respect to Mr Roberts, in light of the fact that he was an essentially untrained employee who is of limited financial means, I have generally imposed a fine of $500 for each offence, with a lesser fine when a second offence occurs on similar facts.

1. Mrs Spiteri's fine is a nominal one reflecting her low degree of criminality, and the fact that she is charged in her capacity as a director of the Company.

Fines Imposed

1. It will be appropriate to repeat the earlier table, but in a form which inserts the fines to be imposed, in place of the maximum penalties. The later orders of the Court will reflect the fines imposed by reference to each Summons.

Driver	Date of Offence	Time	Summons	Clause	Defendant	Fine Imposed
Attard, Christopher	5/3/2010	3.37 am	2011/407563 Fatigue	50(2)(a)	Peter Spiteri	$1,100
Attard, Christopher	5/3/2010	3.37 am 15 h 30 m	2011/407599 Work Hours	50(2)(b)	Peter Spiteri	$550
Attard, Christopher	15/3/2010 -21/3/2010	92 h 59 m out of 168 h	2011/407520 Work Hours	49(2)(b) / 64 / s 178(1)	Peter Spiteri	$2,500
Attard, Christopher	25/3/2010	3.06 am	2011/407572 Fatigue	49(2)(a) /s 178(1)	Peter Spiteri	$2,200
Attard, Christopher	25/3/2010	3.06 am	2011/407623 Fatigue	50(2)(a)	Jason Roberts	$500
Attard, Christopher	30/3/2010	3.00 am19 h	2011/407520 Work Hours	49(2)(b) / 64 / s 178(1)	Peter Spiteri	$2,500
Attard, Christopher	30/3/2010	3.00 am 19 h	2011/407636 Work Hours	50(2)(b) / 64	Jason Roberts	$500
Day, Benjamin	17/3/2010 -18/3/2010	12.53 am on 17/3/10	2011/407572 Fatigue	49(2)(b) / s 178(1)	Peter Spiteri	$2,200
Day, Benjamin	17/3/2010 -18/3/2010	12.53 am on 17/3/10	2011/407623 Fatigue	50(2)(a)	Jason Roberts	$500
Day, Benjamin	26/3/2010	3.01 am	2011/407623 Fatigue	50(2)(a)	Jason Roberts	$500
Day, Benjamin	26/3/2010	3.01 am	2011/407572 Fatigue	49(2)(a) / s 178(1)	Peter Spiteri	$2,200
Day, Benjamin	31/3/2010	1.13 am 21 h 30 m	2011/407636 Work Hours	50(2)(b) / 64	Jason Roberts	$500
Day, Benjamin	31/3/2010	1.13 am 21 h 30 m	2011/407560 Work Hours	50(2)(b) / 64 / s 178(4)	SPSS	$3,300
Day, Benjamin	1/4/2010	5.52 am 15 h 34 m	2011/407520 Work Hours	49(2)(b) / 64 s 178(1)	Peter Spiteri	$2,200
Day, Benjamin	29/3/2010 - 4/4/2010	78 h 49 m out of 168 h	2011/407520 Work Hours	49(2)(b) / 64 s 178(1)	Peter Spiteri	$2,200
Day, Mathew	15/3/2010 -21/3/2010	79 h 13 m out of 168 h	2011/407520 Work Hours	49(2)(b) / 64 s 178(1)	Peter Spiteri	$2,200
Day, Mathew	26/3/2010	1.31 am - 4.48 pm	2011/407623 Fatigue	50(2)(a)	Jason Roberts	$500
Day, Mathew	26/3/2010	1.31 am - 4.48 pm	2011/407572 Fatigue	49(2)(a) / s 178(1)	Peter Spiteri	$2,200
Day, Mathew	31/3/2010	4.48 am17 h 28 m	2011/407560 Work Hours	50(2)(b) / 64 / s 178(4)	SPSS	$6,600
Day, Mathew	31/3/2010	4.48 am17 h 28 m	2011/407636 Work Hours	50(2)(b) / 64	Jason Roberts	$500
Day, Mathew	1/4/2010	4.52 am17 h 43 m	2011/407520 Work Hours	49(2)(b) / 64 s 178(1)	Peter Spiteri	$2,500
Day, Stephen	15/3/2010 -21/3/2010	79 h 46 m out of 168 h	2011/407520 Work Hours	49(2)(b) / 64 s 178(1)	Peter Spiteri	$2,200
Day, Stephen	31/3/2010	4.11 am	2011/407531 Fatigue	50(2)(a) / s 178(4)	SPSS	$6,600
Day, Stephen	31/3/2010	4.11 am 14 h	2011/407560 Work Hours	50(2)(b) / 64 / s 178(4)	SPSS	$3,300
Day, Stephen	31/3/2010	4.11 am	2011/407623 Fatigue	50(2)(a)	Jason Roberts	$150
Day, Stephen	31/3/2010	4.11 am 14 h	2011/407636 Work Hours	50(2)(b) / 64	Jason Roberts	$500
Day, Stephen	1/4/2010	5.52 am 15 h 33 m	2011/407520 Work Hours	49(2)(b) / 64 / s 178(1)	Peter Spiteri	$2,200
Day, Stephen	2/4/2010	5.43 am	2011/407510 Fatigue	49(2)(a)	SPSS	$6,600
Day, Stephen	2/4/2010	5.43 am	2011/407572 Fatigue	49(2)(a) / s 178(1)	Peter Spiteri	$2,200
Formosa, Brian	15/3/2010 -21/3/2010	85 h 21 m out of 168 h	2011/407520 Work Hours	49(2)(b) / 64 s 178(1)	Peter Spiteri	$2,500
Formosa, Brian	31/3/2010	3.00 am	2011/407531 Fatigue	50(2)(a) / s 178(4)	SPSS	$6,600
Formosa, Brian	31/3/2010	3.00 am	2011/407623 Fatigue	50(2)(a)	Jason Roberts	$500
Formosa, Brian	31/3/2010	17 h 31 m	2011/407636 Work Hours	50(2)(b) / 64	Jason Roberts	$150
Formosa, Brian	31/3/2010	17 h 31 m	2011/407560 Work Hours	50(2)(b) / 64 / s 178(4)	SPSS	$3,300
Formosa, Brian	1/4/2010	5.03 am	2011/407510 Fatigue	49(2)(a)	SPSS	$6,600
Formosa, Brian	1/4/2010	5.03 am	2011/407572 Fatigue	49(2)(a) / s 178(1)	Peter Spiteri	$2,200
Formosa, Brian	2/4/2010	4.21 am 16 h 4 m	2011/407520 Work Hours	49(2)(b) / 64 s 178(1)	Peter Spiteri	$2,500
Fosse, Craig	5/3/2010	4.46 am 14 h 12 m	2011/407636 Work Hours	50(2)(b) / 64	Jason Roberts	$250
Fosse, Craig	5/3/2010	4.46 am 14 h 12 m	2011/407520 Work Hours	49(2)(b) / 64 s 178(1)	Peter Spiteri	$2,200
Fosse, Craig	5/3/2010	4.46 am 14 h 12 m	2011/407656 Work Hours	49(2)(b) / 64 s 178(1)	Tienie Spiteri	$250

Costs

1. The prosecutor sought an order against all of the defendants that they pay the professional costs of the prosecutor. The prosecutor made it clear that he was not seeking to include in that order any previously reserved costs.

1. In seeking the order for costs, the prosecutor relied upon the provisions of s 257B of the Criminal Procedure Act 1986.

1. The defendants opposed the order, and submitted that the prosecutor had conducted himself unreasonably during the course of the proceedings and, so, should be denied his costs.

1. The defendants submitted that the prosecutor's conduct was unreasonable in three respects. First, the number and duplication of the charges was unreasonable. Secondly, the defendants point to the prosecutor's failure to supply a concise statement of the factual basis of the charges as being unreasonable conduct. This, it was submitted, prevented the defendants from making further early admissions. Thirdly, the defendants submitted that the prosecutor provided and relied upon voluminous material in interlocutory proceedings that was unnecessary because the material was largely irrelevant.

1. The interlocutory decisions of Barr AJ dealt with the matter outlined in the first and third bases above. His Honour made an order reserving the costs of those proceedings. The order for costs, which the prosecutor claims now, specifically excludes any reserved costs. The effect of this is that the defendants will not be faced with paying costs for two of the three matters that they regard as unreasonable. I do not need to make any finding as to whether the conduct of the prosecutor was or was not unreasonable in these respects.

1. The second basis above, namely, that there was no provision by the prosecutor of statements of facts when requested, is regrettable. However, I am not satisfied that the conduct was unreasonable to such an extent as would warrant the Court making an order for costs. To the extent that any item of costs that is claimed can be said to be unreasonable, then that item can be challenged, and if appropriate, disallowed, during an assessment process.

1. The prosecution was brought on a proper basis and in fulfilment of the discharge of a public obligation to enforce the heavy transport legislation where appropriate. In respect of the extant charges, the prosecution has resulted in multiple convictions. There is no good reason advanced as to why the defendants ought not pay the prosecutor's professional costs. In my view they should.

1. However, the legislation does not permit an order to be made that a defendant pay the prosecutor's costs of any proceedings in which they were not involved as a party. Accordingly, the costs orders will be framed to reflect only those proceedings to which the Company and other defendants were each a party.

Orders

1. The Court makes the following orders:

A: SOUTH PENRITH SAND & SOIL PTY LTD

(1)   In proceedings 2011/407510, I convict South Penrith Sand & Soil Pty Ltd of the offence set out in paragraph 9 of the Summons filed 19 December 2011.

In respect of that offence, I impose a fine of $6,600.

(2)   In proceedings 2011/407510, I convict South Penrith Sand & Soil Pty Ltd of the offence set out in paragraph 11 of the Summons filed 19 December 2011.

In respect of that offence, I impose a fine of $6,600.

(3)   In proceedings 2011/407531, I convict South Penrith Sand & Soil Pty Ltd of the offence set out in paragraph 4 of the Summons filed 19 December 2011.

In respect of that offence, I impose a fine of $6,600.

(4)   In proceedings 2011/407531, I convict South Penrith Sand & Soil Pty Ltd of the offence set out in paragraph 5 of the Summons filed 19 December 2011.

In respect of that offence, I impose a fine of $6,600.

(5)   In proceedings 2011/407560, I convict South Penrith Sand & Soil Pty Ltd of the offence set out in paragraph 3 of the Summons filed 19 December 2011.

In respect of that offence, I impose a fine of $3,300.

(6)   In proceedings 2011/407560, I convict South Penrith Sand & Soil Pty Ltd of the offence set out in paragraph 4 of the Summons filed 19 December 2011.

In respect of that offence, I impose a fine of $3,300.

(7)   In proceedings 2011/407560, I convict South Penrith Sand & Soil Pty Ltd of the offence set out in paragraph 5 of the Summons filed 19 December 2011.

In respect of that offence, I impose a fine of $6,600.

(8)   In proceedings 2011/407560, I convict South Penrith Sand & Soil Pty Ltd of the offence set out in paragraph 6 of the Summons filed 19 December 2011.

In respect of that offence, I impose a fine of $3,300.

(9) In proceedings 2011/407510, 2011/407531, and 2011/407560, I order, pursuant to s257B of the Criminal Procedure Act 1986, South Penrith Sand & Soil Pty Ltd to pay to the Principal Registrar of the Court, for payment to the prosecutor, such professional costs of the prosecution, other than reserved costs, as may be determined under section 257G of the Criminal Procedure Act 1986.

B: PETER JOHN SPITERI

(10)   In proceedings 2011/407520, I convict Peter John Spiteri of the offence set out in paragraph 1 of the Summons filed 19 December 2011.

In respect of that offence, I impose a fine of $2,200.

(11)   In proceedings 2011/407520, I convict Peter John Spiteri of the offence set out in paragraph 2 of the Summons filed 19 December 2011.

In respect of that offence, I impose a fine of $2,500.

(12)   In proceedings 2011/407520, I convict Peter John Spiteri of the offence set out in paragraph 3 of the Summons filed 19 December 2011.

In respect of that offence, I impose a fine of $2,200.

(13)   In proceedings 2011/407520, I convict Peter John Spiteri of the offence set out in paragraph 4 of the Summons filed 19 December 2011.

In respect of that offence, I impose a fine of $2,200.

(14)   In proceedings 2011/407520, I convict Peter John Spiteri of the offence set out in paragraph 5 of the Summons filed 19 December 2011.

In respect of that offence, I impose a fine of $2,500.

(15)   In proceedings 2011/407520, I convict Peter John Spiteri of the offence set out in paragraph 6 of the Summons filed 19 December 2011.

In respect of that offence, I impose a fine of $2,500.

(16)   In proceedings 2011/407520, I convict Peter John Spiteri of the offence set out in paragraph 7 of the Summons filed 19 December 2011.

In respect of that offence, I impose a fine of $2,500.

(17)   In proceedings 2011/407520, I convict Peter John Spiteri of the offence set out in paragraph 8 of the Summons filed 19 December 2011.

In respect of that offence, I impose a fine of $2,200.

(18)   In proceedings 2011/407520, I convict Peter John Spiteri of the offence set out in paragraph 9 of the Summons filed 19 December 2011.

In respect of that offence, I impose a fine of $2,200.

(19)   In proceedings 2011/407520, I convict Peter John Spiteri of the offence set out in paragraph 10 of the Summons filed 19 December 2011.

In respect of that offence, I impose a fine of $2,500.

(20)   In proceedings 2011/407520, I convict Peter John Spiteri of the offence set out in paragraph 11 of the Summons filed 19 December 2011.

In respect of that offence, I impose a fine of $2,200.

(21)   In proceedings 2011/407563, I convict Peter John Spiteri of the offence set out in paragraph 1 of the Summons filed 19 December 2011.

In respect of that offence, I impose a fine of $1,100.

(22)   In proceedings 2011/407572, I convict Peter John Spiteri of the offence set out in paragraph 1 of the Summons filed 19 December 2011.

In respect of that offence, I impose a fine of $2,200.

(23)   In proceedings 2011/407572, I convict Peter John Spiteri of the offence set out in paragraph 3 of the Summons filed 19 December 2011.

In respect of that offence, I impose a fine of $2,200.

(24)   In proceedings 2011/407572, I convict Peter John Spiteri of the offence set out in paragraph 5 of the Summons filed 19 December 2011.

In respect of that offence, I impose a fine of $2,200.

(25)   In proceedings 2011/407572, I convict Peter John Spiteri of the offence set out in paragraph 7 of the Summons filed 19 December 2011.

In respect of that offence, I impose a fine of $2,200.

(26)   In proceedings 2011/407572, I convict Peter John Spiteri of the offence set out in paragraph 9 of the Summons filed 19 December 2011.

In respect of that offence, I impose a fine of $2,200.

(27)   In proceedings 2011/407572, I convict Peter John Spiteri of the offence set out in paragraph 11 of the Summons filed 19 December 2011.

In respect of that offence, I impose a fine of $2,200.

(28)   In proceedings 2011/407599, I convict Peter John Spiteri of the offence set out in paragraph 1 of the Summons filed 19 December 2011.

In respect of that offence, I impose a fine of $550.

(29) In proceedings 2011/407520, 2011/407563, 2011/407572 and 2011/407599, I order, pursuant to s257B of the Criminal Procedure Act 1986, Peter John Spiteri to pay to the Principal Registrar of the Court, for payment to the prosecutor, such professional costs of the prosecution, other than reserved costs, as may be determined under section 257G of the Criminal Procedure Act 1986.

C: JASON ROBERTS

(30)   In proceedings 2011/407623, I convict Jason Roberts of the offence set out in paragraph 1 of the Summons filed 19 December 2011.

In respect of that offence, I impose a fine of $500.

(31)   In proceedings 2011/407623, I convict Jason Roberts of the offence set out in paragraph 2 of the Summons filed 19 December 2011.

In respect of that offence, I impose a fine of $500.

(32)   In proceedings 2011/407623, I convict Jason Roberts of the offence set out in paragraph 3 of the Summons filed 19 December 2011.

In respect of that offence, I impose a fine of $500.

(33)   In proceedings 2011/407623, I convict Jason Roberts of the offence set out in paragraph 4 of the Summons filed 19 December 2011.

In respect of that offence, I impose a fine of $500.

(34)   In proceedings 2011/407623, I convict Jason Roberts of the offence set out in paragraph 5 of the Summons filed 19 December 2011.

In respect of that offence, I impose a fine of $150.

(35)   In proceedings 2011/407623, I convict Jason Roberts of the offence set out in paragraph 6 of the Summons filed 19 December 2011.

In respect of that offence, I impose a fine of $500.

(36)   In proceedings 2011/407636, I convict Jason Roberts of the offence set out in paragraph 1 of the Summons filed 19 December 2011.

In respect of that offence, I impose a fine of $250.

(37)   In proceedings 2011/407636, I convict Jason Roberts of the offence set out in paragraph 2 of the Summons filed 19 December 2011.

In respect of that offence, I impose a fine of $500.

(38)   In proceedings 2011/407636, I convict Jason Roberts of the offence set out in paragraph 3 of the Summons filed 19 December 2011.

In respect of that offence, I impose a fine of $500.

(39)   In proceedings 2011/407636, I convict Jason Roberts of the offence set out in paragraph 4 of the Summons filed 19 December 2011.

In respect of that offence, I impose a fine of $500.

(40)   In proceedings 2011/407636, I convict Jason Roberts of the offence set out in paragraph 5 of the Summons filed 19 December 2011.

In respect of that offence, I impose a fine of $500.

(41)   In proceedings 2011/407636, I convict Jason Roberts of the offence set out in paragraph 6 of the Summons filed 19 December 2011.

In respect of that offence, I impose a fine of $150.

(42) In proceedings 2011/407623 and 2011/407636, I order, pursuant to s257B of the Criminal Procedure Act 1986, Jason Roberts to pay to the Principal Registrar of the Court, for payment to the prosecutor, such professional costs of the prosecution, other than reserved costs, as may be determined under section 257G of the Criminal Procedure Act 1986.

D TIENIE SPITERI

(43)   In proceedings numbered 2011/407656, I convict Tieni Spiteri of the offence set out in paragraph 1 of the Summons filed 19 December 2011.

In respect of that offence, I impose a fine of $250.

(44) In proceedings 2011/407656, I order, pursuant to s257B of the Criminal Procedure Act 1986, Tienie Spiteri to pay to the Principal Registrar of the Court, for payment to the prosecutor, such professional costs of the prosecution, other than reserved costs, as may be determined under section 257G of the Criminal Procedure Act 1986.

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Decision last updated: 30 June 2014