Transport for NSW v SRK Transport Pty Ltd

[2021] NSWDC 359

District Court

New South Wales

Medium Neutral Citation:

Transport for NSW v SRK Transport Pty Ltd [2021] NSWDC 359

Hearing dates:

22 July 2021

Date of orders:

22 July 2021 (reasons 28 July 2021)

Decision date:

22 July 2021

Jurisdiction:

Criminal

Before:

Wilson SC DCJ

Decision:

Appeal dismissed.

Catchwords:

CRIME – Severity Appeal – Heavy Vehicle offence

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW) s 10(1)(a)

Heavy Vehicle National Law (NSW) No 42a of 2013 s 96(1)(c)

Cases Cited:

Parker v DPP (1992) 28 NSWLR 282

R v Paris [2001] NSWCCA 83

Texts Cited:

None

Category:

Consequential orders

Parties:

SRK Transport Pty Ltd (Appellant)
Transport for NSW (Respondent)

Representation:

Solicitors:
Mr Bell (with leave) (Appellant)
Ms Acebedo (Transport for NSW)

File Number(s):

2021/25362

Publication restriction:

None

REASONS

1. The appeal in this matter came before me on a day when I was dealing with several other short matters. The hearing of the appeal was postponed on several occasions during the course of the day. Time did not permit fulsome reasons to be provided at that time, although the reasons for dismissing the appeal would have been apparent to the appellant in the exchanges engaged in with its representative. I now provide written reasons.

2. On 14 April 2021, the appellant pleaded guilty and was sentenced on a single charge of permitting a heavy vehicle to be driven whilst not complying with mass requirements-severe. This is an offence under section 96(1)(c) of the Heavy Vehicle National Law:

96 Compliance with mass requirements

(1) A person who drives, or permits another person to drive, a heavy vehicle on a road must ensure the vehicle, and the vehicle's components and load, comply with the mass requirements applying to the vehicle, unless the person has a reasonable excuse.

Maximum penalty--

(a) for a minor risk breach--$4000; or

(b) for a substantial risk breach--$6000; or

(c) for a severe risk breach--$10000, plus an additional maximum $500 for every additional 1% over a 120% overload (but so that the additional maximum penalty does not exceed $20000).

3. The maximum penalty applicable for the breach in question exceeded $73,000.00. The appellant was fined $1,000.00.

4. The maximum penalty is a reflection of the seriousness with which the legislature considers a breach of this type. That is further informed by the objects of the legislation set out in section 3:

3 Object of Law

The object of this Law is to establish a national scheme for facilitating and regulating the use of heavy vehicles on roads in a way that--

(a) promotes public safety; and

(b) manages the impact of heavy vehicles on the environment, road infrastructure and public amenity; and

(c) promotes industry productivity and efficiency in the road transport of goods and passengers by heavy vehicles; and

(d) encourages and promotes productive, efficient, innovative and safe business practices.

5. Plainly, the purpose of the offence provision is primarily public safety. Contextually, that is the safety of the driver of the heavy vehicle, and more broadly of other road users.

6. Although an appeal from the Local Court is to proceed by way of rehearing of evidence, including fresh evidence, this appeal was put on a narrow basis. The appeal was for the severity of the sentence. The relief sought on appeal was to avoid a conviction being recorded against the appellant company.

7. The submissions advanced in behalf of the appellant fell broadly into 3 categories.

8. First, it was said that the appellant was not responsible for the loading of the vehicle. The trailer was already loaded when the driver, employed by the appellant, arrived at the pickup location. It was submitted that it is apparent from looking at the photographs of the trailer that the pallets had been loaded irregularly. That is, the entire weight of the pallets rested upon the tri-axle section of the trailer. It was submitted that the appellant ought not be considered responsible for the manner in which the trailer was loaded.

9. The difficulty with this submission is that liability under the offence provision is strict, save for the appellant’s right to show “a reasonable excuse”. The appellant submitted that it had a reasonable excuse (that is, that another was responsible for loading of the trailer) but that, in good faith, it pleaded guilty to the offence nonetheless. The submissions advanced on appeal as to reasonable excuse ought to have been advanced in the Local Court in order to avoid a conviction. Whilst a plea of guilty is a factor relevant to sentence, it does not follow that a conviction is not recorded.

10. The second topic of submissions was that, following this breach and an earlier conviction in in respect of an incident in December 2019, the appellant engaged a consultant to perform an audit and implement mass and fatigue modules of the NHVA Accreditation Scheme. Whilst this is commendable, it was only implemented by the appellant following two offences and convictions. It does, however, demonstrate that the appellant has taken steps to improve its system so as to reduce the risk of reoffending. These are mitigating factors up on sentence, as is the guilty plea.

11. The third submission advanced on behalf of the appellant was that if the conviction stood (notwithstanding the plea of guilty) then, if it were to reoffend, it would suffer financial and reputational harm. I reject this submission outright. First, contrary to the previous submission, it has at its core the risk that the appellants may reoffend and, secondly, the submission is founded on an invalid assumption that if it were to reoffend for a 3^rd time it should not receive a more severe penalty.

12. It was submitted that the defendant had “an unremarkable conviction history”. I do not agree. It has incurred 2 infringements in the space of 12 months. As in the instant matter, the appellant incurred a breach as a consequence of the driver picking up a trailer which was preloaded and sealed. It was submitted that this fact prevented the driver from physically checking the load.

13. The nature of the offence provision is that as owner of the vehicle the appellant permits the employed driver to tow a non-complying load, there is no knowledge element in the offence. That is, it is not an element of the offence that the owner of the truck knowingly permitted the driver to tow the non-compliant load. The reason for this is apparent. It would be burdensome, if not impossible, for the owners of trucks towing heavy loads to themselves inspect each load prior to the driver towing it. The obligation to check the load is on the driver of the truck. By reason of the offence provision the owner, by permitting the driver to tow the load, is taken to be the vicariously liable for the offence, subject to the reasonable excuse provision.

14. Mr Bell who appeared for the appellant submitted that his client be dealt with under section 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW). That is, the Court having found guilt (by reason of the plea) not proceed to conviction or, alternatively, that the appellant be sentenced to a Conditional Release Order for 12 months without a conviction being recorded.

15. In considering whether an offender should be dealt with under section 10, with or without a Conditional Release Order, it is necessary to have regard to the matters in subsection (3):

(3)  In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors—

(a)  the person’s character, antecedents, age, health and mental condition,

(b)  the trivial nature of the offence,

(c)  the extenuating circumstances in which the offence was committed,

(d)  any other matter that the court thinks proper to consider.

16. Relevant to antecedents is the fact of prior offending in 2019. Relevant to an assessment of the triviality of the offence is the fact that the offending fell in the “severe” range. There are no extenuating circumstances. It was submitted that a matter to which the Court may have regard is the expense incurred by the appellant in implementing the audit and improving its safety protocol in 2021.

17. Whilst the fact that the offence is not trivial is not, of itself, a bar to the exercise of the Court’s discretion (see R v Paris [2001] NSWCCA 83 at [42]), I am of the opinion that, given the purpose for the legislation containing the offence provision and the risk to public safety in the event of non-compliance, it would be inappropriate to not record a conviction to act as a deterrent for any risk of reoffending and also to ensure that, in the event of re-offending, the company is appropriately punished.

18. In my opinion, the sentence imposed on the appellant was lenient. Were I to have re-sentenced the appellant, it is likely that the sentence would be harsher. Ordinarily this would cause me to give the appellant a Parker direction (see Parker v DPP (1992) 28 NSWLR 282 at [295]). I chose not to adopt that course as I am of the view that the appellant is entitled to, and maybe assisted by, these reasons. Further, the appeal proceeded on a limited basis. That is, to avoid a conviction being recorded.

19. The appeal is dismissed.

**********

I certify that the previous 19 paragraphs are the reasons for the judgment of his Honour Judge D Wilson SC.

J Bailey

Associate

Decision last updated: 28 July 2021