Roberts v Redpath Haulage Pty Ltd
[2018] TASSC 33
•29 June 2018
[2018] TASSC 33
COURT: SUPREME COURT OF TASMANIA
CITATION: Roberts v Redpath Haulage Pty Ltd [2018] TASSC 33
PARTIES: ROBERTS, Stuart
v
REDPATH HAULAGE PTY LTD
FILE NO: LCA 3672/2017
DELIVERED ON: 29 June 2018
DELIVERED AT: Hobart
HEARING DATE: 12 June 2018
JUDGMENT OF: Geason J
CATCHWORDS:
Magistrates – Appeal and review – Tasmania – Motion to review – Appeal against sentence – Crown alleged sentence is manifestly inadequate – Magistrate sentenced for breach of the Heavy Vehicle National Law – Magistrate erred in exercise of sentencing discretion – Magistrate failed to take into account relevant considerations – Sentence manifestly inadequate.
Aust Dig Magistrates [1345]
REPRESENTATION:
Counsel:
Appellant: E Bill
Respondent: P Sullivan
Solicitors:
Appellant: Director of Public Prosecutions
Respondent: P Sullivan
Judgment Number: [2018] TASSC 33
Number of paragraphs: 34
Serial No 33/2018
File No LCA 3672/2017
STUART ROBERTS v REDPATH HAULAGE PTY LTD
REASONS FOR JUDGMENT GEASON J
29 June 2018
This appeal concerns the Heavy Vehicle National Law (Tasmania) (HVNL). The HVNL is part of a national scheme based upon the HVNL (Queensland) 2012 and enacted in Tasmania by the Heavy Vehicle National Law (Tasmania) Act 2013. It has been enacted in all States and Territories except Western Australia and the Northern Territory.
The appellant appeals the inadequacy of the sentence imposed upon the respondent by Magistrate Fairley for a breach of s 96(1) of the HVNL. A breach of s 96(1) constitutes an offence under s 183(2) of the HVNL. The particulars of the charge were as follows:
"2 Charge: Severe risk breach of mass requirement applying to a heavy vehicle
Breach of: Section 96(1) of the Heavy Vehicle National Law (Tasmania), a relevant offence of section 183(2) of that Act.
Particulars: You are charged as the operator of a heavy vehicle, namely a tandem axle pig trailer towed by a 3 axle rigid truck, registration numbers DU0334 and Z85VA, that on or about 1:00pm on 3 June 2016 on the Bass Highway at Forest Farm, Meander Valley, a road in Tasmania, a person, namely Murray James McCall, drove that heavy vehicle combination, when the mass of the tandem axle pig trailer with its load measured a mass of 18.8 tonne, thereby exceeding the mass requirement of 15 tonne for that heavy vehicle by 3.8 tonne."
The Respondent pleaded guilty. The learned magistrate imposed a penalty of $850. The respondent was ordered to pay court costs of $82.15.
The facts
On 3 June 2016 a driver employed by the respondent was operating a heavy vehicle comprising a white Volvo three axle rigid truck towing a tandem axle heavy pig trailer, transferring potatoes from Red Hills in the Meander Valley to Forth. The distance between the two is approximately 40 kilometres. It passes a weigh station.
The vehicles were registered to the respondent. The Volvo truck complied with the mass requirements applying to it but the pig trailer did not. It was weighed at 18.8 tonnes. The permitted maximum mass was 15 tonnes. As a result of the breach, the driver was issued with a "notice to rectify" before he was able to continue the journey. This required the excess to be offloaded to another vehicle before the journey could be completed.
The learned magistrate's comments on passing sentence were as follows:
"I note the plea of guilty to the charge contrary to the heavy vehicle national law requirements. In all the circumstances it seems to me that the company is responsible for all of the requirements set out by the legislation but I do accept that it is a difficult matter for the director of the company to ensure compliance with given the loading of the vehicle at the paddock and the transportation of the goods to the processor. As Mr Redpath says, the situation is one where he is entirely reliant upon the person loading the vehicle and the driver of the vehicle itself to ensure that there is compliance with the legislation. Here there has been quite a significant overloading of the vehicle, some – slightly more than twenty five – or is it a hundred and twenty five percent of the maximum permissible load. In that regard I do have to take into consideration the appreciable risk of harm to others – other persons or the environment, not so much the environment I would have thought given that the load was potatoes, but there is of course the risk of a roll – over in cases where a trailer has been loaded over the requirements, so it is required by the legislation to be treated as a severe risk. However I note all of the circumstances, the plea of guilty at an early opportunity and the expense that the company has already been put to with regards to the unloading and redistribution of the load. In those circumstances I'm going to deal with the matter by way of the imposition of a lenient fine, particularly given that Mr Redpath has advised that his operations have been significantly curtailed by his recent retirement, so I expect there's going to be little chance of this occurring again.
So on the complaint there is a conviction to be recorded and a fine in the sum of eight hundred and fifty dollars. There will be court costs –
CLERK: Eighty two dollars fifteen.
HIS HONOUR: – of eighty two dollars and fifteen cents, and I note that fine is significantly less than would have been required if the uplift provision with regards to the percentages referred to by Ms Slevin were mandatory but I'm told that they're not. If that is incorrect I would invite the Crown to advise the Court and I can deal with the matter pursuant to s93 of the Sentencing Act for a correction if I'm misdirected as to that."
The appellant's case on the appeal focuses on the legislative purpose of the National Scheme enshrined within the HVNL. The appellant submits that the HVNL introduced each of the following:
1High penalties across all offences, including breaches of mass, dimension and loading requirements.
2Removal of mistake of fact as a defence for a number of offences, including breaches of mass, dimension and loading requirements.
3Requirements on parties in the chain of responsibility, including registered operators, owners and employers, to take all reasonable steps to ensure compliance with specified standards, including those related to mass, dimension and loading requirements.
4A multiplier for body corporates where the maximum penalties are five times the penalties for individuals.
Section 594 is applicable to sentence. The purpose of s 594 is set out in subs (1):
"594(1) The purpose of this section is to bring to a court's attention the implications and consequences of a contravention of a mass, dimension or loading requirement when deciding the kind and level of sanction to be imposed for the contravention."
Section 594(2) mandates a consideration of the matters identified in par (c), which relates to "severe risk" breach cases. They are:
"(c) a severe risk breach of a mass, dimension or loading requirement involves 1 or more of the following—
(i)an appreciable risk of harm to public safety or the environment;
(ii)a serious risk of accelerated road wear;
(iii)a serious risk of damage to road infrastructure;
(iv)a serious risk of increased traffic congestion;
(v)a serious risk of diminished public amenity;
(vi)a serious risk of unfair commercial advantage."
Section 594(5) of the HVNL provides that no evidence is required to establish any of the factors referred to in s 594(2)(c). Each is considered to be a consequence of such breach, though it is a rebuttable proposition.
Section 596(3) of the HVNL provides that if a body corporate is found guilty of an offence, the court may impose a maximum fine equal to five times the maximum fine for an individual. The maximum penalty in this case is $62,500.
The applicant conceded at hearing that accelerated road wear from the offence was "arguable". There was no evidence either way, and it must be that the prosecutor's intention was to state that any such consequence was likely to be capable of being disputed, so it was not put.
The prosecutor drew attention to the risk of unfair commercial advantage which would accrue in consequence of the respondent's conduct. While the benefit was not quantified, the Court accepts that in a general sense, breaches of this sort will reduce costs to offending businesses at the expense of businesses which are compliant.
In sentencing, the learned magistrate referred to the considerations appearing in s 594, and acknowledged the consequences of the respondent's status as a body corporate. He acknowledged that there had been a significant overloading of the vehicle, with risk to the public the result. He referred to the financial circumstances of the respondent's director, Robert Redpath. He noted the early plea of guilty, and the expense incurred by the respondent in consequence of its own failure.
However the learned magistrate ignored the fact that the respondent had no system in place to ensure compliance, recording only the fact that Mr Redpath was reliant upon the person loading the vehicle. The respondent cannot delegate its legal responsibility, and the difficulty encountered by reason of its failure in that respect is not material to sentencing.
The learned magistrate also ignored the fact that the respondent had had significant time between the date of the offence and the date of court to implement a system for the management of the risk of overloading, but had not done so.
The learned magistrate ignored the fact that the respondent had three relevant prior matters involving similar circumstances. (Each was dealt with on infringement notice and it is reasonable to infer was less serious than this offence.) Personal deterrence was an important factor in sentencing, and the sentence which was imposed failed to reflect that.
Nor was any mention made of the legislative purpose of the HVNL. That is an important sentencing consideration which underscores the need for general deterrence. In the context of the statutory maximum, the quantum of the fine which was imposed represents less than 2% of the maximum penalty for the offence. The Court notes that the offence is in the most serious category of breaches under the Act, and that the vehicle exceeded the allowable maximum by almost four tonnes, representing 125.3% of the allowable mass for the trailer. As the appellant submitted, the mass requirement was exceeded by almost the weight of another heavy vehicle, defined in the HVNL to include vehicles with a gross vehicle mass of 4.5 tonnes and over.
Delay was a focus of the sentencing hearing. It was referred to in the learned magistrate's reasons for decision and by the respondent in this appeal. Insofar as the prosecution was attended by delay, the authorities have, in my view, failed to act promptly to enforce the statutory regime.
Delay as a sentencing consideration was discussed in Williams v Tasmania [2014] TASCCA 2. At [17] Pearce J said:
"The law concerning the issue of delay was stated by this Court in Prehn v R [2003] TASSC 55 at [21] in which Crawford J (as he then was) wrote the lead judgment and referred to R v Todd [1982] 2 NSWLR 517 at 519 – 520 and R v Schwabegger [1998] 4 VR 649 at 660. Prehn was subsequently applied by this Court in W v Tasmania (above). Delay between commission of an offence and final disposition of a case is not per se mitigating. However if a prosecution is too slow it can be unfair on the offender, particularly if there is evidence of rehabilitation demonstrated by the accused in the meantime. Delay before the bringing of charges is generally of greater weight. In some cases delay can be a dominant sentencing factor and reduce the significance of a sentence of general deterrence; see R v Schwabegger at 659 – 660."
Typically delay is attended by an extended period of uncertainty, and anxiousness while the wait for charges to be laid, or a court appearance goes on. Fairness may require that this be afforded some mitigatory weight; Smith vR (1982) A Crim R 437 at 442. Where the time is used to take rehabilitative steps the same principles will apply; Todd v R [1982] 2 NSWLR 517 at 519-520. But in this case, the respondent, though aware that the vehicle had been pulled over on 3 June 2016, was apparently unaware of any prospective charges or a prosecution until December 2017. As I have noted elsewhere, in the period after the offence was committed the respondent had done nothing to implement any sort of system to avoid its repetition. Compliance remained a matter of chance, based upon estimation or guesswork. I do not accept that the delay in this case should result in a reduction in penalty.
Before imposing penalty the learned magistrate took no steps to ascertain the financial position of the respondent. The circumstances of Robert Redpath were not material to that question, though they may have been indicative of the company's circumstances. Further inquiry was necessary. The failure to obtain that information meant the court was not apprised of information relevant to penalty, and in proceeding on the basis of Mr Redpath's financial circumstances, the court overlooked a relevant matter.
Each of these matters constituted a failure to have regard to a relevant matter in sentencing.
I am satisfied that the sentence which has been imposed in this case is unreasonable or plainly unjust. The error falls within the second limb of House v The King (1936) 55 CLR 499. That case is so well understood the passage is infrequently set out, but occasionally it bears repeating:
"The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so."
Accordingly I allow the appeal.
I consider that this is a case where the principles applicable to a Crown appeal require the court to disturb the findings of the court below; Her Majesty’s Attorney General v O [2004] TASSC 53 at [31]-[36]. There is a paucity of cases dealing with sentencing under the HVNL, and it is appropriate for this Court to intervene to articulate the approach to sentencing required in these cases. That approach requires a sentencing court to have regard to the statutory purpose of the Act, and the important public safety objectives at its core. Those considerations are paramount and deserve considerable weight in framing the sentencing response.
It was agreed that if I upheld the appeal I should proceed to resentence. I heard from counsel for the purposes of resentencing.
The appellant referred the Court to the Tasmanian Sentencing Advisory Council records which identified two other sentences imposed for breach of s 96(1) of the HVNL by bodies corporate. Each was fined $4,000 or more.
As to the financial circumstances of the respondent I was told that the company is not profitable. In 2016 the company suffered a financial loss of approximately $4,000, and the loss to 30 June 2018 is in the range of $6,000. I have regard to those figures in resentencing.
I have noted that the respondent has convictions for relevant prior matters, two in 2008 and another in 2014. Each involves breaches of the same type as the breach the subject of the charge in this case. Of course, the HVNL was not in operation at the time of those offences but the relevance of them cannot be doubted as each falls within the same general category of offending as the subject charge in this case. They evidence a cavalier attitude to compliance with relevant standards.
I accept the distance travelled was relatively short, but that is only because the vehicle was stopped. The planned journey was around 40 kilometres.
I note the statutory maximum applicable for an offence of this type, involving a body corporate.
Having regard to the matters appearing in s 594(2) (c), I conclude that the respondent's conduct carried with it an appreciable risk of harm to public safety. Each of the other matters, save for the risk of increased traffic congestion, is material to the determination of penalty in this case. The risk of damage to road infrastructure will not have been substantial, but it will have accrued. In consequence of the offending conduct, there is a risk of diminished public amenity, and the risk of unfair commercial advantage must be acknowledged, albeit in a general way, for the purposes of resentencing.
Noting the respondent’s financial circumstances, but also the need for a penalty which serves the need for general deterrence, I consider that the appropriate penalty is a fine of $4,500. A defendant is entitled to a discount for its early plea of guilty; DPP v Broad [2018] TASCCA 5. I note that a plea of guilty was entered at the earliest opportunity. I will reduce the quantum of the fine by 20% in recognition of that fact. I order that the respondent pay $3,600. I have been told that the fine of $850 has been paid. The balance of $2750 is payable within 28 days.
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