DPP v Peter Stoitse Transport [2022] VCC 870

1. Between 2009 and 2014, there were six rollovers involving milk tankers of PST. One rollover, on 12 March 2010, resulted in the death of the driver of the tanker.
2. PST gave its drivers limited training regarding rollovers. Most of that training concerned the procedures involved with collecting milk from farms. Its procedures and manuals did not mention the risk of rollovers. This constitutes Charge 1.
3. When transported within a tanker, milk moves around with the movements of the vehicle. This is called a "dynamic load" as opposed to a stable load.
4. To drive a combination truck and trailer of a dynamic load requires specialised training, knowledge and expertise.

1. On 26 May 2018, Rodney Lunson was driving PST's prime mover and semi-trailer on the South Gippsland Highway between Koonwarra and Meeniyan. The combination was a little over half full of milk.
2. At about 5.45 am, Mr Lunson proceeded into a bend with a left curve. The combination rolled over onto its

right-hand side and slid into a rock walled embankment. Mr Lunson died at the scene. 3. A reconstruction of the accident by the police concluded the combination was travelling at about 65 kilometres per hour when it started to yaw and roll. The speed limit there was 100 kilometres per hour, while the recommended speed for the bend or curve was 55 kilometres per hour.

1. On 17 July 2018, WorkSafe and VicRoads jointly selected 10 vehicles from PST's fleet at its Leongatha depot. They inspected five prime movers and five trailers. These vehicles were in use that day or available for use that day. Mechanical defects were found in five prime movers and four of the five trailers. The defects are set out in detail in the table to Exhibit A. Four of the five prime movers were issued with major defect notices. The remaining prime mover was issued with a minor defect notice. Four of the five tankers were issues with a major defect notices. One tanker was not issued with any kind of notice. Those vehicles issued with major defect notices were removed from use until the defects were repaired.
2. These defects should have been identified and repaired if these vehicles were maintained in a safe mechanical condition. These circumstances constitute the rolled up Charge 2.
3. The rolled up nature of Charge 2 has these aspects. First, PST failed to document and monitor all inspections, defects, repairs and servicing of the prime movers and tanker trailers. Second, it failed to repair promptly the mechanical defects found in its prime movers and tanker trailers. Third, it failed to audit driver inspections of these vehicles to ensure their safe mechanical condition. Fourth, it failed to remove these vehicles from use when unsafe.
4. The other aspect is its failure to adopt a safe system of work with these aspect. First, by requiring its drivers to undertake checks of the prime movers and to complete checklists. Second, by monitoring that their drivers were performing checks and completing checklists. Third, by reporting identified defects to appropriate mechanics and arranging for their repair. Fourth, promptly repairing the identified defects.
5. PST had been warned in the past. In June 2015, a defect notice was issued regarding one of its prime movers with serious maintenance defects. At the same time, an Improvement Notice was issued to PST relating to its system of work regarding its maintenance of heavy vehicles.

1. On 29 September 2018, a prime mover and tanker trailers rolled over, injuring the driver, who was an employee of PST, and who was driving one of its vehicles. The driver went to hospital by ambulance, having suffered an injury. PST did not notify the Victorian WorkCover Authority immediately of the accident, which was its legal obligation. These circumstances constitute Charge 3.

1. Although PST has no criminal history, as I said earlier, it does have a history of rollovers, one of which resulted in the death of one of its employees.

1. PST was formed in 1970 by Peter Stoitse to provide general freight services across Victoria. His son, Steven, is now the sole director of PST, having become a director in 2012. The shareholders of the company are Steven Stoitse, his mother and his two siblings.
2. In 2018, the transport of milk comprised 82 to 86 per cent of the business of PST. During the peak season in 2018, it employed about 262 persons, including truck drivers. It owned and operated about 95 trucks and 115 trailers.
3. In 2018, Ray East was PST's General Manager. He started with the company in 2007. He was responsible for the day to day operations of the business, including maintaining the fleet and training of its employees.
4. In June 2020, Mr East ceased his employment with PST. The company replaced the position of General Manager with the position of Chief Executive Officer. In July 2020,

Michael Munday was appointed to that position. Since that appointment, there have been significant changes to PST itself. 5. First, PST sold its milk transport business to McColl's Operations Pty Ltd ("McColl's"). No monies changed hands, whether from the purchaser or from PST as the vendor. What transpired was:

a) the assignment to McColl's of PST's leases for its premises in seven regional towns or cities; > > b) transfer of its plant, including milk trailers; > > c) the employment by McColl's of the majority of PST's employees. The number of employees went from a peak of 262 to 58. The number of trucks went from about 210 to about 49; and > > d) McColl's assumed PST's liabilities in relation to the transferred assets and those relating to transferred employees.

6. Following the divestment, PST continued to transport general freight and abattoir blood. The latter is, like milk, a dynamic load. PST retains six trailers to do this work. PST, according to Mr Munday, will incur a loss of about $4,291,000 on the sale of its milk transport operations.
7. Second, in March 2021, PST provided short courses in safety leadership training to its managers and supervisors. The training covered a range of topics including safety law, safety culture, effective safety communication, motivating safety practice, risk assessment, job safety analysis, and strategic safety planning. It intends to provide safety training to new staff.
8. Third, PST has now a full-time staff member assigned to safety work. Before the sale, it had the equivalent of 4.6 full-time staff undertaking occupational health and safety work. This number included a dedicated compliance manager. Since then the number of employees has decreased from about 267 to about 58. Although Mr Munday thinks this is an increase, arithmetically, it is about the same proportionally.
9. Fourth, before the sale of the milk transport division, PST had formulated what

Mr Munday calls a 'strategic business plan for safety goals and values'. Since the sale, and with the reduction in the size of the business, the plan has been reformulated but retaining the 'core safety strategy values and goals which were originally developed'. 10. Fifth, PST has improved its risk assessment and safety management procedures. This includes the implementation of what is called a 'Commitment Statement'. 11. Sixth, PST down conducts a roller brake test on its fleet every six months as part of its regular servicing of the vehicles. 12. Seventh, PST will increase the frequency of medical examinations of its employees and widen its scope to include hearing tests. 13. Eight, its record of fleet management is now electronic. The system, called 'Gearbox' gives alerts for the repair and servicing of vehicles. This system is now being replaced by a system which is an electronic record of the business called 'Kiri Freight'. The system will notify drivers of training required. It will require drivers to check their vehicles before driving and advising the system of the condition of the vehicle. The implementation cost of this new system is $64,500 and will cost $50,000 annually, presumably, including licence fees. 14. Nineth, PST has installed another electronic system called 'Moodie' which allows it to know what training its employees have done and what they need to do. The system provides training modules for employees to undertake. 15. Tenth, PST plans to install cameras which alert the driver if he or she is distracted. It had installed the system in 10 trucks but these were sold to McColl's. 16. Eleventh, prior to the sale, PST installed Geotab GPS tracking to each prime mover and this would alert staff as to whether the driver was speeding, cornering or accelerating harshly. This system cost $42,000 annually. 17. Twelfth, at each of its operational sites, PST installed noticeboards, which contain safety information. 18. Before the sale, PST fitted its milk tankers in Gippsland with electronic braking systems. The purpose was to reduce rollovers. It cost $144,500. 19. PST set up monthly meetings between depot or site managers and between drivers and other staff to enable the communication, and presumably discussion, of any safety issues. By the time of the sale, these had increased to weekly. 20. PST revised its training and induction programme. The revision involved mandatory pre-employment checks, a revised induction checklist, a comprehensive compliance and fatigue information pack, pre-trip and post-trip inspection training and an explanation of drivers' responsibilities. 21. The cost of these changes, before and after the sale, was $779,151. 22. To show the effect of these reforms, Mr Munday tells of a conversation he had in mid-2021 of the favourable result of a roadside inspection of one of PST's trucks and trailer. A different inspection in March 2022 of PST's Welshpool depot resulted in the inspector making a written report. The inspector explained the purpose of the visit as follows:[1]

'I entered this workplace as part of WorkSafe Victoria's focus on safety in the TRANSPORT INDUSTRY. The purpose of this visit is to proactively address known hazards associated with [serious/traumatic] injuries and fatalities, such as, vehicle maintenance, falls, traffic management and Level 1 manual handling, with the primary aim to prevent future incidents/harm occurring.'

1. A copy of the inspector's report is an annexure to Mr Munday's first affidavit. The report largely documents the practices of PST under nine headings. Overall, it appears to be a favourable report. Since the inspector gave PST the details of websites concerning the virus, I infer in that area alone was PST deficient.
2. In each of the last four financial years, PST has incurred a significant after tax loss. In the last two financial years, the size of the after tax loss has been reduced by large tax credits. For the current financial year, PST anticipates a net loss of $4,650,000. Interestingly, Mr Munday anticipates PST breaking even in the 2022/2023 financial year.
3. PST's balance sheet for 2020/2021 shows a surplus of $3,539,842 after subtracting all liabilities from all assets. If the anticipated loss of $4,291,000 transpires then its liabilities may exceed its assets for its accumulated losses will escalate by an amount such as that amount.
4. In his second affidavit, Mr Munday believes the amount of the asset revaluation reserve is inflated. Since the accounts were prepared by accountants and

Mr Stoitse declared they fairly represented PST's financial position, I give no weight to Mr Munday's belief. Nevertheless, the 2021/2022 financial statement will present a very different company following the divestment of a very large part of it.

1. In DPP v Frewstal Pty Ltd_[2]__,_ Priest and Kaye JJA set out the principles by which a sentencing court should be guided when assessing the objective seriousness of offending against the Act:[3]

'First, unlike cases of unlawful homicide, the occurrence of death or serious injury is not an element of the offences charged. An accused is punished according to the gravity of the breach of duty owed under the OHSA, not according to the result or consequences of the breach.

Secondly, the gravity of the breach is measured by two factors - the seriousness of the breach itself (that is, the extent to which the defendant has departed from its statutory duty); and, the extent of the risk of death or serious injury which might result from the breach.

Thirdly, an assessment of the extent of the risk itself involves consideration of two factors - the likelihood of the occurrence of an event as a result of the breach (such as the event that occurred in the particular case) endangering the safety of employees or others; and, the potential gravity of the consequence of such an event (in particular, whether there is a risk of death or serious injury).

Fourthly, the fact that the breach in the particular case resulted in death is relevant only in the sense that it might manifest or demonstrate the degree of seriousness of the relevant threat to health or safety resulting from the breach.'

1. Section 5(1) of the Sentencing Act 1991 sets out the purposes for which sentences may be imposed:

a) to punish the offender to the extent and in a manner which is just in all of the circumstances; > > b) to deter the offender or other persons from committing offences of the same or a similar character; > > c) to establish conditions within which it is considered that the offender's rehabilitation may be facilitated; > > d) to manifest the denunciation of the type of conduct the offender engaged in; and > > e) to protect the community from the offender.

2. In most cases, one or more of those purposes are relevant and that is so in this case.
3. Section 5(2) of the Sentencing Act sets out matters to which regard must be paid where they are relevant.

1. In the DPP v Vibro-Pile (Aust) Pty Ltd_[4]_, the court there said of the concept of general deterrence:[5]

'...The sentences imposed need to draw attention to the importance of workplace safety, and to send a message to employers that failure to eliminate or mitigate safety risks will attract significant punishment.'

1. That passage emphasises the importance of general deterrence amongst the sentencing purposes which I have outlined. Employers must think about the safety of their workplaces and take steps to lessen or eliminate risks to the safety of their employers and other relevant persons.

Specific Deterrence and Protection of the Community

1. Since the events underlying these changes, PST has taken significant steps to improve its performance. It has replaced its general manager with a modern thinking Chief Executive Officer. It has sold its milk transport division at a considerable loss, so it would appear, and is now focused on general freight delivery. The sale of the milk transport division means it has dramatically reduced the number of tankers in its fleet form 152 to six. Correspondingly, it has dramatically reduced the risk of tanker rollovers. I would not attribute the sale of its milk transport division solely to the pursuit of safety. Judging from the results of the past five financial years, PST was in financial difficulty. Something had to happen. Divesting the milk transport division was a step towards financial survival.
2. I have summarised the various safety measures implemented by PST. They are extensive. Apparently, they caused PST to reach an appropriate standard as evidenced by the March 2022 inspector's report.
3. With natural persons as offenders, one looks at his or her prospects of rehabilitation. The same applies to a corporate body because it comprises natural persons. With PST, those prospects are excellent. Apart from the pleas of guilty evidencing remorse, this is shown through the safety measures it has implemented or will implement. It has done so at a significant cost. I say "significant" because PST's financial position between 2017 to 2018 and 2020 to 2021 was one of sizeable losses on each of those financial years. Unless the losses are stemmed, PST was heading towards insolvency. The measures were implemented in the face of a poor financial position.
4. As a corollary, the need to deter PST from these or similar offences in the future is markedly lessened. The same consideration applies to the need to protect the community from PST.

1. Nevertheless, there is a need for my sentence to denounce PST's conduct in relation to each charge. It had been warned of the danger of rollovers. There had been six such events in the past, one resulting in the death of its employees. It should have taken steps to enhance the safety of its employees much earlier.
2. It had also been warned of the need to appropriately maintain its prime movers and tankers. This is also a situation where I must have keen regard to the concept of one of the purposes of the sentencing being just punishment.

1. The assessment of the nature and gravity of these offences is performed in the light of the principles set out in Frewstal's case. As to Charge 1, owing to the nature of its load, driving a milk tanker involves special risks to its drivers. These special risks are due to the "dynamic" nature of the milk in the tanker: it can slosh about the tanker itself, creating instability. In the particulars to

Charge 1, particular 5 details two areas of instruction and training:

'a. detailed information and instruction about the unique handling characteristics of a milk tanker combination that is carrying a dynamic load, including the effect of the movement of milk within the tanker trailer;

1. supervised training in driving a milk tanker combination that is carrying a dynamic load, including in difficult driving conditions such as winding roads.'

1. There was the need to provide detailed information and training in relation to driving such vehicles, but very little was given. The drivers were left virtually untrained. The driving of these vehicles contained risks and those risks entailed serious consequences for the drivers. PST were aware of those serious consequences from the six earlier rollovers. Accordingly, Charge 1 is a serious example of an offence under s21(1) of the Act.
2. In relation to Charge 2, of the 10 prime movers and tanker trailers inspected on

17 July 2018, eight of them were issued major defect notices. These notices required the vehicles to be taken off the road until the defects were repaired. Many of the defects concerned steering, suspension and breaking. These are important aspects of a vehicle. This charge is a serious example again of an offence under s21(1) of the Act. 3. In relation to Charge 3, this too is a serious example. After seven previous rollovers, to say that PST did not know of the need to report is an amazing failure to understand its obligations under the law.

1. Similarly, the offender's culpability is assessed with the principles in Frewstal's case in mind. As to PST's culpability for each of the charges, it is high. For Charge 1, PST should have learnt from the six earlier rollovers, especially the one which resulted in the death of its employee. The lack of training and information was reprehensible.
2. With Charge 2, the scale of the defects is so large as it too points to a high level of culpability.
3. With Charge 3, PST says it did not know its obligation to report. This assertion was not disputed. However, given its history, it should have known. Although PST does not put forward ignorance as an excuse, its ignorance shows a high level of culpability.

1. Counsel for the Director drew my attention to three sentences, two in this court and one in the Magistrates' Court of Victoria, which I have read.[6]

1. Joanne Morgan was the partner of Rodney Lunson. Mr Lunson was the driver of the milk tanker, the subject of

Charge 1. Ms Morgan read her statement to the court. In my years as a judicial officer, I have not read or heard a sadder Victim Impact Statement. The degree she still experiences after four years is palpable. Plainly, the death of Mr Lunson has profoundly affected her and is still a matter of a great anguish for her.

1. As for the timing of the entry of PST's pleas of guilty, the charges were filed on

9 January 2020. During 2020 and 2021 there were 10 committal mention hearings. During those years, negotiations occurred, culminating in committal through a process known as 'straight hand-up brief'. There was no committal hearing in the sense of the calling of witnesses. PST was committed on the basis of the prosecution's brief of evidence. This process immediately followed an unsuccessful application of these charges determined in the Magistrates' Court. 2. The Director submits these pleas were entered at a 'relatively early' stage and I accept that categorisation. 3. In almost every case, a plea of guilty deserves a mitigation of the sentence which would be otherwise imposed. At the very least, it avoids the need for a trial, which saves time and expense. It allows other trials to be heard earlier than would otherwise be the case. It avoids the need for witnesses to give evidence at a trial. Generally, this is an onerous task for witnesses. These reasons form the mitigation of penalty are well known in legal circles, but I doubt they are well known outside of legal circles or the additional mitigatory effect of a guilty plea made at this time. 4. Due to the restrictions caused by the pandemic, the criminal courts in particular have struggled to deal with criminal cases efficiently. This has prompted our

Court of Appeal in the case of Worboyes v R_[7]_ to explain that pleas of guilty are worthy of a greater discount of the sentence if made at this time. It is worth quoting a passage from the Court's judgment which shows the emphasis in place on pleas of guilty at this time of restriction:[8]

'As is abundantly clear, one of the pernicious effects of the current pandemic is that the lists of the criminal courts in this State have become severely congested. Unacceptable delay in the disposition of criminal cases is endemic. Indeed, it is not an overstatement to say that the system of criminal justice in this State is in crisis, requiring a response from the courts. We therefore consider that, whilst the courts of this State continue to labour under the adverse effects of the pandemic, a sentencing court should view a plea of guilty as carrying with it a greater utilitarian benefit than at other times and in other circumstances, and, concomitantly, as attracting an augmented mitigatory effect on sentence, simply because the plea will benefit the beleaguered administration of justice. Given the unhappy state of the courts' lists, the courts must, in an endeavour to alleviate the strain on the system, encourage those accused who are guilty to so plead. Such encouragement must come from an actual and palpable amelioration of sentence.'

1. PST's pleas of guilty are entitled to a very significant discount on the sentence I would have imposed if it had pleaded not guilty to these charges but had been found guilty after a trial. The extent of the discount can be seen in my s6AAA statement at the end of this sentence.

1. Section 52(1) of the Sentencing Act provides if a court decides to fine an offender, it must, in determining the amount and the method of payment, take into account as far as practicable, the financial circumstances of the offender and the nature of the burden that this payment will impose.
2. Both parties made submissions about the adequacy of the financial information provided to me.
3. For the financial year 2020 to 2021, PST's balance sheet shows a surplus of $3,539,842 after subtracting all liabilities from all assets.
4. This raises the nature of the anticipated loss of about $4,291,000 due to the sale. Mr Munday explains how that figure is arrived at in paragraph 14 of his first affidavit. First, he points out that no money went from McColl's to PST as a result of the sale. Then, in the following sub-paragraphs of that paragraph he discusses the nature of the sale:

a) PST had milk trailers and prime movers under finance. McColl's assumed PST's liabilities under those financing arrangements. If McColl's had not assumed those liabilities and PST had sold the vehicles, Mr Munday believes the sale proceeds would have equalled the liabilities. > > b) McColl's took possession of the prime movers and milk trailers owned by PST. Mr Munday considered the value of those vehicles at about $5.3m. > > c) McColl's assumed the responsibility of PST's liabilities for its former employees who became employed by McColl's after the sale. He considers that liability to be about $1.58 million. > > d) PST paid $146,000 to employees who were made redundant. > > e) McColl's assumed responsibility for PST's leased milk transport depots in three country towns. He says McColl's assumed a liability of about $200,000. It is not made clear whether that is an annual liability or a liability over the term of those leases. > > f) McColl's took possession of PST's property and plant depots in four country towns. Mr Munday believes PST incurred a loss of $625,000.

5. As to sub-paragraph (h), it appears to be a repeat of what was said in

sub-paragraph (g) and I will ignore it. 6. The figure in (a) seems to result in an equal reduction of assets and liabilities and can be ignored. As to the rest, PST expended $146,000. It sustained a loss of $5,925,000 for (b) and (f), offset by $1,800,000 in relation to (c) and (e). 7. Section 52(1) requires a court to investigate the financial position of a defendant. Apart from the financial ramifications of the sale, the financial position of PST had been deteriorating for four years. The sale represented a radical solution. It left a much smaller company expected, from a profit and loss position, to "break even" in 2022 to 2023 and, presumably, return to profitability in the following years. 8. I could not say what PST's balance sheet looks like now, after the sale. That is a matter for its accountants. They would look at the sale agreement with McColl's and make the appropriate adjustments. The present financial year is nearing its end. Presumably, those figures will be available later this calendar year. 9. Mr Munday was a major force behind the radical restructure of PST. Some kind of change was necessary for otherwise PST was in serious financial difficulties. He believes the changes will restore PST to profitability. PST accordingly has some capacity to pay fines, limited at present, but is expected to improve in the future.

1. On Charge 1, PST is convicted and fined $300,000.
2. On Charge 2, PST is convicted and fined $150,000.
3. On Charge 3, PST is convicted and fined $40.000.

s6AAA Declaration

1. If PST had not pleaded guilty to these charges but had been found guilty after a trial, I would have imposed fines totalling $750,000.

1. Given that I have imposed fines, normally one would refer the collection of the fines to Fines Victoria. However, s52(1) of the Sentencing Act implies other powers of the Court for the payment of fines. Accordingly, I would leave it to the parties as to whether any application is made by one or other of them in that regard.
2. Is there any other matter that either counsel wishes - apart from that last issue, any other matters either counsel wishes me to address?
3. MS WALSH: Yes, Your Honour, I have an application and it is that the fines be broken down cross the next financial year in this way; that my client pays $100,000 by 1 July this year; that my client pays $100,000 by 1 October, then $100,000 by 1 January 2023, then $100,000 by 1 April 2023 and then the remaining $90,000 by 1 June 2021 - I beg your pardon, 2023.
4. HIS HONOUR: All right. Do you want to say anything about that, Mr Bourbon?
5. MR BOURBON: No, that course is not opposed, Your Honour. The only thing I should add, Your Honour, is that the fine is to be referred to Fines Victoria together with that instalment order.
6. HIS HONOUR: I beg your pardon?
7. MR BOURBON: The management of the fine is to be referred to Fines Victoria, together with Your Honour's order, if Your Honour makes one, about the instalment order.
8. HIS HONOUR: Why can't I just say that the fines are payable to the registrar or principal registrar of the County Court?
9. MR BOURBON: Fines Victoria now manages fines instead of the registrar of the County Court.
10. HIS HONOUR: Things have changed. All right, well, what's been submitted to me by Mr Bourbon is that I order that the fines be payable to Fines Victoria and payable in the following manner which you've described to me.
11. MS WALSH: Yes, Your Honour.
12. HIS HONOUR: You'd both be content with that?
13. MR BOURBON: Yes, no opposition to that course, Your Honour.
14. MS WALSH: Yes, Your Honour.
15. HIS HONOUR: All right. Unless there's anything else, thank you both and I will impose those sentences and refer the fines to - well, make the fines payable to Fines Victoria in the terms that you've outlined.
16. MR BOURBON: As Your Honour pleases.
17. MS WALSH: As Your Honour pleases.
18. HIS HONOUR: Unless there's anything else, I'll have my tipstaff adjourn the court for the time being.

[1] WorkSafe Inspection Report dated 23 March 2022.

[2] [2015] VSCA 266

[3] [2015] VSCA 266 at paragraph 127

[4] [2016] VSCA 55; (2016) 49 VR 676

[5] [2016] VSCA 55; (2016) 49 VR 676 at paragraph 233

[6] DPP v Resource Recovery Victoria Pty Ltd [2015] VCC 472; DPP v Grampians Free Range Poultry Pty Ltd County Court 4 July 2018; Tomlin v Valley Sweep Pty Ltd, Magistrate's Court of Victoria, 2 October 2020

[7] [2021] VSCA 169

[8] [2021] VSCA 169 at paragraph 35