Environment Protection Authority v Mainfreight Distribution Pty Ltd

Land and Environment Court (NSW)|2014-03-27|Before: Sheahan J

Solicitors: Office of Environment and Heritage(Prosecutor) Lord Commercial Lawyers (Defendant) File Number(s): 50688 of 2013

The Charge

"Dangerous Goods" are defined by the Dangerous Goods (Road and Rail Transport) Regulation 2009 ("the Regulation"), and in chapter 2 of Volume 7 of the Australian Code for the Transport of Dangerous Goods by Road and Rail ("the ADG code" - ASF, footnote 1).
The Regulation deals with not only "placarding" of loads, but also with segregation, restraint, documentation, emergency information, safety equipment, and emergencies.
Any "placards" required by the Regulation must be visible from 25 m in daylight, and to measure at least 250 mm along any edge. They are to be securely attached also to the front and the rear of the vehicle, and removed or "turned around" when it is not transporting dangerous goods.
Schedule 1 to the Regulation sets out an extensive list of offences, and the different penalties which apply to individuals and corporations for a breach of particular sections of the DGA and/or particular clauses of the Regulation.
It is clear that many of those more technical offences may have been committed in the incident the subject of the present charge, but the prosecutor opted to bring the statutory charge in the summons: See discussion in Pantazis v The Queen [2012] VSCA 160, at [27] - [39].
The charge the prosecutor brought is particularized as follows: (a) Involvement in transport of dangerous goods by road (i) The Defendant undertook to be responsible for the transport of dangerous goods by road otherwise than as an employee or subcontractor and/or (ii) The Defendant was responsible for the transport of dangerous goods by goods by road otherwise than as an employee or subcontractor and (iii) The Defendant loaded the dangerous goods for transport by road. (b) Vehicle used to transport dangerous goods by road (the Vehicle) (i) Prime mover registration - NV77GT (Federal/Interstate) (ii) Trailer registration - NT59EF (Federal/Interstate). (c) Dangerous goods 1) 12 cans of "XD400 XCEED HVY DUTY DGR AEROSOL 400G" (Class 2.1, packaging group ii) totalling 4.8 kilograms 2) 12 cans of "XL400 XCEED DWF SPRAY LUBR AERO 400G" (Class 2.1, packaging group ii) totalling 4.8 kilograms 3) 6 cans of "PBQSF1 PROBUILD FLEX BUILDERS FILLER 1KG" (Class 3, packaging group ii), totalling 6 kilograms 4) 1 carton of "CARBON DIOXIDE" (Class 2, packaging group not listed), total quantity not listed 5) 1 carton of "A.1 MECHANIC IN A CAN" (Class 2.1, packaging group not listed), totalling 12 kilograms 6) 1 carton of "DRY CHEMICAL POWDER" (Class 2.2, packaging group 2), total quantity not listed 7) 2 cartons of "DRY CHEMICAL POWDER" (Class 2.2, packaging group 2), total quantity not listed 8) 2 cartons of "DRY CHEMICAL POWDER" (Class 2.2, packaging group 2), total quantity not listed 9) 8 cans of "BALLISTOL 200ML AEROSOL" (Class 2.1, packaging group ii), totalling 2.4 kilograms 10) 3 containers of "GARAGE FACT & FLR DEEP BASE 4L" (Class 3, packaging group iii), totalling 14.4 kilograms 11) 1 container of "GARAGE FACT & FLR DEEP BASE 10L" (Class 3, packaging group iii), totalling 12.0 kilograms 12) 4 containers of "MONOCEL GOLD LABEL - GLOSS 500ML" (Class 3, packaging group iii), totalling 2.4 kilograms 13) 4 containers of "MONOCEL GOLD LABEL - GLOSS 1L" (Class 3, packaging group iii), totalling 5.76 kilograms 14) 2 containers of "MONOCEL GOLD LABEL - SATIN 500ML" (Class 3, packaging group iii), totalling 1.2 kilograms 15) 2 containers of "MONOCEL GOLD LABEL - SATIN 1L" (Class 3, packaging group iii), totalling 2.88 kilograms 16) 8 containers of "RANEX RUSTBUSTER 1L" (Class 3, packaging group iii), totalling 2.88 kilograms 17) 1 pallet of 2 drums of "ETHANOL AND PETROL MIXTURE (E85)", (Class 3, packaging group ii), totalling 378 kilograms 18) 2 pallets of 4 drums of "ETHANOL AND PETROL MIXTURE (E85)", (Class 2, packaging group ii), totalling 1512 kilograms 19) 2 pallets of 4 drums of "ETHANOL AND PETROL MIXTURE (E85)", (Class 2, packaging group ii), totalling 1512 kilograms [The Court notes the repetition in par 19 of the content of par 18, an error corrected by the prosecutor in the ASF - [see par 17E.45 below] 20) 1 carton of "CALCIUM HYPOCHLORITE" (Class 5.1, packaging group ii), totalling 12 kilograms 21) 17 buckets of "CALCIUM HYPOCHLORITE" (Class 5.1, packaging group ii), totalling 170 kilograms 22) 18 buckets of "CALCIUM HYPOCHLORITE" (Class 5.1, packaging group ii), totalling 180 kilograms 23) 3 drums of "SODIUM SELENITE 25KG" (Class 6.1, packing group i), totalling 75 kilograms and 24) 1 package of "CHROMEBRIGHT" (Class 8, packaging group ii), total quantity not listed. (d) Place where offence committed (i) The Defendant loaded the dangerous goods onto the Vehicle at or near Prestons in the State of New South Wales (ii) The Defendant was responsible for the transport of dangerous goods in the State of New South Wales, including roads between Prestons and Marangaroo. (e) Failure to ensure dangerous goods transported in a safe manner (i) The Defendant failed to ensure that incompatible dangerous goods were not loaded onto the Vehicle (ii) The Defendant failed to ensure that incompatible dangerous goods loaded onto the Vehicle were appropriately segregated (iii) The Defendant failed to ensure that the Vehicle's load, including items of dangerous goods, were appropriately restrained (iv) The Defendant failed to ensure that the Vehicle onto which a placard load of dangerous goods was loaded was placarded (v) The Defendant failed to ensure that the Vehicle was equipped with the required items of personal protection equipment (vi) The Defendant failed to ensure that the Vehicle was fitted with an emergency information holder (vii) The Defendant failed to ensure that the Vehicle was fitted with the prescribed fire extinguisher (viii) The Defendant failed to adequately supervise its staff to ensure that the dangerous goods were loaded onto the Vehicle in a safe manner (ix) The Defendant failed to adequately train its staff to ensure that the dangerous goods were loaded onto the Vehicle in a safe manner

The Agreed Facts

In fairness to the defendant, I shall now quote very extensively from the ASF, in sections, but not necessarily in the order followed by the document (some emphasis in original): 17A: Dangerous Goods (ASF 9 - 14) "9. The transport of Dangerous Goods by road or rail in NSW is regulated by the [DGA] and the ... Regulation, which incorporates the provisions of the ADG Code.
The ADG Code sets out the detailed technical and procedural requirements for a range of activities performed by various parties during the preparation of Dangerous Goods for transport and the transport of those Dangerous Goods.
Dangerous Goods are defined by clause 32 of the ... Regulation and part 2 of the ADG Code. A copy of the relevant extract of Part 2 of the ADG Code is at Tab 1 of the [ASF].
The classification of Dangerous Goods in Australia mirrors that of the United Nations Recommendations on the Transport of Dangerous Goods Model Regulations. Dangerous Goods are assigned a Class Number (UN Class 1-9) which reflects the particular category of risk posed by the properties of the particular Dangerous Good.
Dangerous Goods are classified according to the type of risk they pose as a result of their chemical composition or properties. The categories include explosives, flammable liquids, flammable gasses, toxic substances, oxidising substances and corrosive substances. Certain classes of Dangerous Goods are further subdivided depending on any particular subsidiary risk posed.
Dangerous Goods are also classified by reference to their packaging group which is classed from 1-3. Packaging Group 1 indicates substances presenting the highest level of danger and group 3 the lowest level danger." 17B: The Defendant (ASF 2 - 4) "2. The Defendant is a freight distribution company engaged in the storage and transport of freight, including Dangerous Goods both intra-state and inter-state.
The Defendant was responsible for the transportation of the Dangerous Goods the subject of these proceedings.
The Dangerous Goods were loaded by the Defendant onto a truck at its distribution depot in Prestons New South Wales." 17C: The Defendant's NSW Operations (ASF 15 - 22) "15. As part of [its] New South Wales operations the Defendant operates a distribution depot at 50 Yarrawa Street at Prestons. The depot is used to receive and hold freight, including Dangerous Goods, prior to distribution both intra-state and inter-state.
Since approximately the year 2000 up till June 2013, the Defendant has had an on-going verbal agreement with NJA to provide transport services for goods being transported by the Defendant both intra-state and inter-state.
Pursuant to that agreement, NJA [Transport Pty Ltd ("NJA")] provided the Defendant with the exclusive use of approximately four trucks each consisting of a prime mover and trailer.
As part of this agreement NJA's trucks were permanently kept at the Defendant's Prestons depot and were exclusively used by Defendant for the purposes of conducting their freight distribution business.
While NJA was the registered owner of the vehicle the subject of this incident, the vehicle was marked with the Defendant's company logo and was at all relevant times under Defendant's control and direction.
The Defendant operates a permanent freight distribution run between its Prestons depot and the towns of Bathurst and Orange in central-western NSW. This distribution run operates 5 nights a week.
The Defendant by itself and through use of subcontractors regularly loads and transports Dangerous Goods on the Sydney to Bathurst and Orange distribution run.
The vehicle the subject of these proceedings was transporting freight, including Dangerous Goods, between the Prestons depot in Sydney and the towns of Bathurst and Orange." 17D: Dangerous Goods Practices And Procedures Prior To The Incident (ASF 25 - 34, and tabs 2 and 3) "25. Freight is collected or received by the Defendant from various consignors in NSW and interstate and delivered to Defendant's distribution depot at Prestons before being sorted and assembled into separate loading bays.
Each consignment of freight received by the Defendant is accompanied by a consignment note containing information in relation to the type and quantity of goods, the consignor's contact details and the receiving party's details.
Consignments of Dangerous Goods are accompanied by a Dangerous Goods Declaration which forms part of the Transport Documentation required by the ... Regulation. The Dangerous Goods Declaration identifies the class, quantity and packaging group of the Dangerous Good the subject of the consignment. [A footnote to ASF 27 says: "Transport Documentation is the paperwork required to be carried in the cabin of a vehicle transporting Dangerous Goods and includes information regarding the type and quantity of Dangerous Goods being transported and the practices and procedures to be followed in the case of an accident or emergency."]
Freight is loaded onto trucks by the Defendant's employees known as 'loaders'. Each loader is responsible for loading freight from an assigned loading bay onto a designated vehicle.
The loader is provided with the consignment notes and Dangerous Goods Declarations for each item of freight in their assigned loading bay.
The Defendant also employs shift supervisors whose duties include conducting checks and audits of vehicles prior to leaving the Preston's depot in order to ensure the vehicle and its load comply with the requirements of the Dangerous Goods legislation.
Once a vehicle has been loaded and restrained the consignment notes and Dangerous Goods Declarations relating to all items within the load are provided to the Defendant's administrative staff at the Prestons depot.
The administrative staff enter details of the load into a database in order to produce an electronic record referred to as a manifest.
The manifest records all items of freight within a particular load including the class and quantity of any Dangerous Goods within the load.
The Dangerous Goods Declarations and other relevant documents are then provided to the driver of the vehicle prior to departure from the Prestons depot." 17E: The Incident 3 - 4 November 2011 (ASF 35 - 48) "35. Between 2 November 2011 and 5 November 2011, the ... [EPA], in conjunction with NSW Police and the NSW Roads and Maritime Services, undertook a heavy vehicle roadside compliance campaign at Marrangaroo on the Great Western Highway about 7 kilometres west of Lithgow.
The EPA was conducting compliance inspections of heavy vehicles in relation to the transportation of Dangerous Goods.
EPA Officers Matthew Corradin, Andrew Helms and Darryl Clift were on duty conducting the Dangerous Goods compliance inspections between approximately 8:00pm on 3 November 2011 and 4am on 4 November 2011.
EPA Officer Mark Clyne was on duty during the afternoon shift of the compliance campaign on 4 November 2011.
At approximately 11:50pm on 3 November 2011, NSW Police stopped a Kenworth prime mover Federal/Interstate registration NV77GT and accompanying tautline trailer Federal/Interstate registration NT59EF (the Vehicle) at the inspection site for the purpose of a roadside breath test.
After NSW Police completed their enquiries in relation to the Vehicle, the EPA officers approached the Vehicle for the purposes of determining the contents of the Vehicle's load and whether or not that load was being transported in compliance with the ... [DGA] and the ... Regulation.
An initial inspection of the Vehicle's Transport Documentation by Officer Helms indicated that the Vehicle was transporting Dangerous Goods as defined by the ... Regulation and the ADG Code.
The driver of the Vehicle [(Colin Charles Brock)] was directed to an inspection area adjacent to the Great Western Highway at Marrangaroo for the purpose a more detailed inspection of the Vehicle and its load.
Officer Clift then conducted a more detailed inspection of the Transport Documentation which indicated that the Vehicle was carrying a Placard Load of Dangerous Goods as defined by clause 78 of the DG Regulation and Chapter 5.3 of the ADG Code. [A footnote to ASF 43 says: "A load is a considered a Placard Load when it consists of particular types and quantities of Dangerous Goods in excess of certain thresholds. Any load consisting of in excess of 1000 kilograms/litres of mixed classes of Dangerous Goods is a placard load. (Clause 78(1)(d))."]
During this inspection Officer Corradin took 30 photos of the Vehicle and its load. Copies of those photos are at Tab 4 of the [ASF].
At the time of inspection by Officers Corradin and Helms the Vehicle was transporting the following classes and quantities of Dangerous Goods as defined by Chapter 2 of the ADG Code [and particularised in [16] (c) above, with items 18 and 19 aggregated by ASF 45 into sub par "r"].
The aggregate quantity of Dangerous Goods being transported by the Vehicle was at least 3910 kilograms. It is reasonably estimated that the weight of the Dangerous Goods marked as "total quantity not listed" given their nature and packaging would not have exceeded 50 kilograms.
The Vehicle contained the following classes and quantities of Dangerous Goods when it left the depot at Prestons on 3 November 2011. Class 2.1 (Flammable gas) 24 kg Class 2.2 (Non-flammable Non-toxic gas) Total quantity not listed Class 3 (Flammable liquid) 3449 kilograms Class 5.1 (Oxidising substances) 362 kilograms Class 6 (Toxic substances) 75 kilograms Class 8 (Corrosive substances) Total quantity not listed

The inspection of the Vehicle and its load by the EPA Officers also revealed the following:

The Vehicle was not displaying Dangerous Goods placards as required by Chapter 5 of the ADG Code.
The Vehicle was transporting incompatible Dangerous Goods that were not segregated in accordance with Chapter 9 of the ADG Code.
The Vehicle's load was not restrained in accordance with chapter 8.1 of the ADG Code.
The Vehicle was not equipped with the Prescribed Personal Protection equipment or fire extinguisher as required by Chapter 12 of the ADG Code." 17F: At the Scene (ASF 49 - 69) "49. Based on his inspection of the Vehicle and the manner in which the load was being transported Officer Corradin issued a written Prohibition Notice under Section 30 of the ... [DGA] to the driver of the Vehicle preventing the transportation of the load until the non-compliances were rectified as Mr Corradin considered it would constitute a dangerous activity as defined by Section 4 of the ... [DGA].

Officer Corradin then issued a written Improvement Notice under Section 28 of the … [DGA] to the Defendant as the Prime Contractor in relation to the load. The Improvement Notice required the rectification of the non-compliances identified in the Improvement Notice by the Defendant before the load would be permitted to leave the Marrangaroo inspection site.
The Driver then proceeded to secure the Vehicle's trailer in an area adjacent to the inspection site before leaving the site in the prime mover Federal/Interstate registration NV77GT.
At approximately 3:15am on 4 November 2011 the compliance campaign was suspended for the evening and Officers Corradin, Helms and Clift left the inspection site.
At approximately 11:00am on 4 November 2011 Officer Corradin contacted Mr Mike Reid, the Defendant's Branch Manager NSW, to ensure he was aware that the Improvement Notice had been issued to the Defendant as the Prime Contractor in relation to the load. Mr Reid was also made aware that the load would not be permitted to leave the inspection site at Marrangaroo until the requirements of the Improvement Notice were complied with.
During his conversation with Officer Corradin, Mr Reid acknowledged that he was aware that the Vehicle had been inspected earlier that morning and, as a result of the identified non-compliances, was subject to the Improvement Notice until the non-compliances were rectified.
Mr Reid also informed Officer Corradin that he had sent a number of the Defendant's employees to the inspection site for the purpose rectifying the non-compliances in relation to the Vehicle and its load.
At approximately 3 pm on 4 November 2011 Officer Clyne commenced his shift as EPA supervisor at the Marrangaroo inspection site. Officer Clyne had been informed by Officer Corradin that the Vehicle had been stopped and inspected earlier that morning and was subject to the Prohibition and Improvement Notices until the non-compliances had been rectified.
At approximately 6pm on 4 November 2011 the driver of the Vehicle returned to the inspection site in prime mover Federal/Interstate registration NV77GT.
After a brief conversation with the driver Officer Clyne proceeded to inspect the Vehicle and its load in order to ascertain whether or not the Improvement Notice issued to the Defendant had been complied with.
During the inspection of the prime mover Officer Clyne observed that while a fire extinguisher was located inside the cabin it had not been affixed to the Vehicle in accordance with the Improvement Notice and Chapter 12 of the ADG Code.
No emergency information holder or notice advising of the location of the EIH at another location within the Vehicle had been fitted to the Vehicle's driver side door as required by the Improvement Notice and Chapter 11.2 of the ADG Code.
Officer Clyne then inspected a bag provided to him by the driver in order to determine whether the Vehicle was carrying the items of Personal Protection Equipment required by Chapter 12 of the ADG Code. Officer Clyne observed that the following items of Personal Protection Equipment as required by the Improvement Notice and Chapter 12 of the ADG Code were not present in the bag or the Vehicle:

eyewash bottle;
gas tight goggles or full face shield;
thermally insulated gloves;
chemically resistant boots; and
electric torch complying with AS/NZS 60079.11

Officer Clyne then inspected the Vehicle's load to ascertain whether or not the non compliances identified in the Improvement Notice in relation to the incompatible Dangerous Goods and the restraint of the load had been rectified. During his inspection of the load officer Clyne observed the following:

the class 5.1 dangerous goods had been removed from the load rectifying the major issue of incompatibility; and
the Vehicle was displaying the required Dangerous Goods placards in the appropriate locations; and
the remainder of the load was still not restrained in accordance with the Improvement Notice and chapter 8.1 of the ADG Code.

Officer Clyne informed the driver that the Vehicle would not be permitted to leave the inspection site until the load had been restrained in accordance Chapter 8.1 of the ADG Code and that the Vehicle was carrying the items of Personal Protection Equipment required by Chapter 12 of the ADG Code.
The load was still not appropriately restrained despite the attendance of two of the Defendant's employees to the Vehicle in order to rectify the non-compliances identified in the Improvement Notice.
The Driver spent the next 90 minutes endeavouring to restrain the load in accordance with Chapter 8.1 of the ADG Code with straps that had been left on the Vehicle by the Defendant's employees.
Officer Clyne was then approached by the driver and a further inspection of the Vehicle's load indicated that it had been restrained in accordance with Chapter 8.1 of the ADG Code.
Officer Clyne completed his shift at the inspection site at approximately 8:30pm on 4 November 2011 at which point he handed over his responsibilities as EPA supervisor to Officer Corradin who had returned to the inspection site.
At approximately 9:30 pm the required items of Personal Protection Equipment were delivered to the Vehicle and Officer Corradin became satisfied that requirements of the Improvement Notice had been sufficiently complied with in order to reduce the risk posed by the transportation of the load to a satisfactory level.
The restrictions imposed by the Prohibition Notice were lifted and the Vehicle and its load were permitted to leave the inspection site. 17G: The EPA's findings (ASF 70 - 104): "DEFENDANT'S FAILURE TO ENSURE THE DANGEROUS GOODS WERE BEING TRANSPORTED IN A SAFE MANNER
The Defendant failed to ensure the Dangerous Goods being transported by the Vehicle the subject of these proceedings were transported in a safe manner in the following ways.

Failure To Appropriately Placard The Vehicle

At the time the Vehicle left the Defendant's Prestons depot on 3 November 2011 it was transporting a Placard Load of Dangerous Goods consisting of an aggregate quantity of at least 3910 Kilograms of the mixed classes of Dangerous Goods set out at paragraphs 45 to 47.
Vehicles transporting a Placard Load of Dangerous Goods are required to display placards in accordance with Chapter 5 of the ADG Code.
A placard is a prescribed label or emergency information panel indicating that a vehicle is transporting Dangerous Goods.
Based on the requirements of Chapter 5.3 of the ADG Code the front and rear of the Vehicle should have been affixed with each class placard or mixed class placards indicating the Vehicle was carrying multiple classes of Dangerous Goods.
At the time the Vehicle left the Prestons depot at or around 10:30pm on the 3 November 2011 it was not displaying placards on either the front or rear of the Vehicle.

Failure To Ensure Incompatible Dangerous Goods Not Transported Within A Placard Load

Particular classes of Dangerous Goods are considered incompatible with other classes of Dangerous Goods if contact or interaction between those classes of Dangerous Goods poses an unacceptable risk of harm.
A vehicle transporting a Placard Load of Dangerous Goods must not transport in the same journey incompatible goods with Dangerous Goods unless those incompatible goods are segregated from the Dangerous Goods with which they are incompatible by means set out in Chapter 9.2 of the ADG Code.
Chapter 9.1 of the ADG code specifies which classes of Dangerous Goods are considered incompatible with each other and therefore must not be transported by the Vehicle on the same journey unless the incompatible goods are appropriately segregated by one of the approved means or measures set out in Chapter 9.2 of the ADG Code. Table 9.1 of the ADG Code indicates which classes of Dangerous Goods are considered incompatible. A copy of Table 9.1 is Tab 5 of the [ASF].
At the time the Vehicle left the Preston's depot on 3 November 2011 it was transporting several classes of incompatible Dangerous Goods that were not segregated in accordance with Chapter 9.2 of the ADG Code.
The Vehicle was transporting the following combinations of incompatible goods as defined by Chapter 2.1 of the ADG Code when it left the Prestons depot on 3 November 2011. Dangerous Good Incompatible Goods E85 Ethanol-Petrol (motor fuel) Class 3 - Flammable liquid 3402 kilograms Calcium Hypochlorite (Pool Chlorine) ChromeBright Class 5.1 - Oxidizing substance Class 8 - Corrosive Substance 350 Kilograms Quantity unknown Various items Class 2.1 - Flammable gasses (At least 24 kilograms) Sodium Selenite Class 6.1 -Toxic Substance 75 Kilograms Food stuffs ChromeBright 1 x pallet of Christmas cakes Class 8 - Corrosive Substance Quantity unknown

Despite being listed in Chapter 9.1 of the ADG Code as incompatible Dangerous Goods approximately 350 kilograms of Calcium Hypochlorite (Class 5.1 Oxidising substance) and approximately 3402 kilograms E85 ethanol-petrol fuel mixture (Class 3 flammable liquid) were being transported by the Vehicle and were not segregated in accordance with Chapter 9.1 of the ADG Code.
The Calcium Hypochlorite was being transported immediately adjacent to drums of the E85 ethanol-petrol fuel mixture.

Failure To Ensure The Load Was Appropriately Restrained

Chapter 8.1 of the ADG Code prescribes the safety requirements in relation to the restraint of Dangerous Goods and other general goods within a Placard Load being transported by a vehicle.
Packages must be stowed and restrained in the transport unit in accordance with the ADG Code and the Load Restraint Guide - Guidelines and Performance Standards for the Safe Carriage of Loads on Vehicles 2004, or in a manner which provides at least the equivalent levels of safety.
Packages must be restrained by suitable means (such as fastening straps, sliding slat boards and adjustable brackets) in the transport unit in a manner that will prevent any movement during transport which would change the orientation of the packages or caused them to be damaged.
The Vehicle's load was not restrained in accordance with Chapter 8.1 of the ADG Code.
Packages and items within the load were not restrained at all or were not restrained in accordance with the requirements of Chapter 8.1 of the ADG Code.
The 18 205-litre drums of E85 ethanol-petrol fuel mixture were not restrained at all. The drums were not secured onto the wooden pallets on which they were being transported.
Pallets and individual items of freight within the load had fallen over, moved or otherwise become dislodged within the load.
Photos P6 to P20 taken by Officer Corradin during the inspection of the Vehicle's load show items within the load that had fallen onto other packages or items within the load or had moved and become dislodged. Copies of photographs P6 to P20 taken by Officer Corradin are at Tab 4 of the [ASF].

Failure To Ensure Vehicle Was Carrying The Prescribed Personal Protection Equipment And Fire Extinguisher

Chapter 12.1 of the ADG Code prescribes the required safety equipment known as Personal Protection Equipment that must be carried on a vehicle transporting a Placard Load of Dangerous Goods.
When the Vehicle left the Prestons Depot on 3 November 2011 it was not carrying the following 7 items of Personal Protection Equipment required to be carried by Chapter 12.1 of the ADG Code:

gas tight goggles
thermally resistant gloves or gauntlets
chemically resistant gloves or gauntlets
chemically resistant suit/overalls
chemically resistant boots
eyewash bottle/kit
electronic torch complying with AS/NZS 60079.11

Chapter 12.1 of the ADG Code also requires that Vehicles transporting a Placard Load of Dangerous Goods are to be fitted with a prescribed type of fire extinguisher fitted in a particular location upon the Vehicle.
At the time the Vehicle left the Prestons depot on 3 November 2011 it was not carrying any type of fire extinguisher.

Failure To Ensure The Vehicle Was Fitted With An Emergency Information Holder

Pursuant to Chapters 11.1 and 11.2 of the ADG Code a vehicle transporting a Placard Load of Dangerous Goods is required to carry Transport Documentation and Emergency Information pertaining to the Dangerous Goods they are transporting in an Emergency Information Holder.
Emergency Information contains information on recommended safety procedures to be followed in case of an incident such as spill or fire involving that particular class of Dangerous Good.
Chapter 11.1.4 of the ADG Code requires that all Vehicles carrying a Placard Load of Dangerous Goods must be fitted with an Emergency Information Holder.
Chapter 11.2.2 of the ADG Code requires that Emergency Information Holder's be fitted either: (a) on the inside of a door of the cabin: or (b) immediately adjacent to the door of the cabin or (c) if the construction of the vehicle does not allow the holder to be attached to the driver's side door or adjacent to the cabin door- elsewhere in the cabin of the vehicle provided that the position of the holder is identified on a notice affixed to the inside of the driver's door of the cabin.
The Vehicle the subject of these proceedings was not fitted with an Emergency Information Holder when it left the Prestons depot on 3 November 2011.

Failure To Observe Operating Procedures and Provide Adequate Training

The Defendant employs shift supervisors and Dangerous Goods coordinators at their Prestons Depot.
There is one shift supervisor and two Dangerous Goods coordinators rostered on duty for each shift
The shift supervisor's duties include conducting checks and audits of vehicles and their loads in order to ensure they comply with legislative requirements of the New South Wales Dangerous Goods legislation.
The Vehicle the subject of these proceedings was not inspected or audited by the Defendant's shift supervisor or Dangerous Goods Coordinators prior to leaving the Prestons depot on 3 November 2011.
The Defendant acknowledges that its training and operating procedures in relation to the transportation of Dangerous Goods by road were, prior to the offence occurring, not entirely adequate to ensure that its obligations under the Dangerous Goods legislation were complied with." 17H: Harm and/or Risk of Harm (ASF 105 - 114) "THE RISK OF HARM CAUSED BY THE DEFENDANT'S FAILURE TO ENSURE THE DANGEROUS GOODS WERE TRANSPORTED IN A SAFE MANNER
The Defendant's failure to ensure the Dangerous Goods being transported by the Vehicle the subject of these proceedings were transported in a safe manner caused the risk of harm to the driver, members of the public, emergency services personnel, property and the environment. However the Defendant's failure resulted in no actual harm to the driver, members of the public, emergency services personnel, property and the environment.
Unrestrained or poorly restrained Dangerous Goods on the Vehicle resulted in a risk of those Dangerous Goods becoming damaged, moving within the load or becoming dislodged from the Vehicle therefore posing a potential risk to the safety of other road users, members of the public and the emergency services who might have to deal with any incident or accident involving the Vehicle.
The fact that drums of ethanol-petrol fuel mixture (flammable liquid) were unrestrained, given their weight, increased the risk that they may dislodge from the Vehicle in the case of a serious accident or rollover increasing the risk of leakages, fire and or explosion.
The lack of placards on the Vehicle would have made any emergency services operation more difficult and significantly more dangerous for emergency services personnel in the event that the load had caught fire and or the Vehicle had been involved in an accident as it would have made the identification of the dangerous chemicals contained in the load significantly more difficult.
The Defendant's failure to ensure the Vehicle was fitted with an Emergency Information Holder increased the risk of harm to emergency services personnel in the case of an accident or fire by making it more difficult for them to locate the Transport Documentation and ascertain the precise nature of the Dangerous Goods being transported by the Vehicle and the risks they posed.
The lack of Personal Protective Equipment outlined in paragraph 92 combined with the use of a non-flameproof torch increased the risk of harm to the driver in the case of any spill, leak or fire. The lack of the prescribed fire extinguisher also meant the driver would have been unable to extinguish any fire that may have occurred on the Vehicle therefore increasing the risk of a larger, more serious fire or emergency.

Dangerous Goods Coordinators have been appointed in all the Defendant's Branches throughout Australia. At the Defendant's Branch at 50 Yarrawa Street Prestons in Sydney there were 4 Coordinators in 2011, 8 in 2012 and there are now 11 in 2013.
Before appointment all Dangerous Goods Coordinators must complete 2 training units PUAFIR306A Render Hazardous Material Incidents Safe and PUFFIR308A Employ Personal Protection at a Hazardous Materials Incident.
A Dangerous Goods audit of each Branch is now conducted annually and a more regular audit program is being developed
A Dangerous Goods/Vehicle Checklist must be completed for every Placard Load before any vehicle leaves a Branch.
Since 2011 Dangerous Goods Awareness Training comprising Refresher and Domestic Induction Courses have been conducted and attended by 258 employees in 2011, 289 in 2012 and 374 in 2013. From 2014 online refresher training in dangerous goods and other areas will be available and will be made compulsory on a quarterly basis.
The development of the Dangerous Goods content of its training courses together with hands on training is ongoing.
The Defendant uses external consultants from the panel of Australian Institute of Dangerous Goods Consultants to advise it upon its compliance and training.
The Defendant has added enhancements to its computer system for Dangerous Goods paperwork and manifests and is engaged in further development around dangerous goods capability into its online system which its customers use to enter their consignments direct into the Defendant's system." 17J: Regulatory History (ASF 116) "116. The Defendant has been issued with and paid sixteen penalty notices since May 2005 for various non-compliances with the NSW Dangerous Goods legislation. The details relating to those penalty notices are set out in the table below. DEFENDANT DANGEROUS GOODS NON-COMPLIANCE HISTORY Date of Issue Legislative Provision Offence Details Action

16/5/05 Clause 124 Fail to supply complying dangerous goods shipping documents to driver. PIN 2/7/07 Clause 80(1) Consign inappropriately placarded load of dangerous goods. PIN 2/7/07 Clause 105(a) Load Dangerous goods for transport with incompatible goods. PIN 26/5/09 Clause 80(1) Consign inappropriately placarded load of dangerous goods. PIN 26/5/09 Clause 80(1) Consign inappropriately placarded load of dangerous goods. PIN 3/2/11 Clause 130(b) Prime contractor use vehicle emergency information not in holder. PIN 11/2/11 Clause 130(b) Prime contractor use vehicle emergency information not in holder. PIN 18/2/11 Clause 136 Prime contractor use vehicle without required fire extinguisher and other equipment. PIN 18/2/11 Clause 121 Provide false and misleading information in transport documents. PIN 22/2/11 Clause 81(1) Load dangerous goods for transport inappropriately placarded. PIN 22/2/11 Clause 81(1) Load Dangerous goods for transport with incompatible goods. PIN 30/3/11 Clause 136 Prime contractor use vehicle without required fire extinguisher and other equipment. PIN 30/3/11 Clause 124 Fail to supply complying dangerous goods shipping documents to driver. PIN 7/4/11 Clause 130(b) Prime contractor use vehicle to transport dangerous goods without required emergency information. PIN 3/5/2013 Section 9 Person involved in the transport of Dangerous Goods fail to ensure dangerous goods transported in a safe manner. PIN 10/5/2013 Clause 121 Transport documentation contain false or misleading particular PIN

17K: Related Prosecutions (ASF 5 - 8) "5. NJA ..., the owner of the vehicle transporting the Dangerous Goods the subject of these proceedings, has been convicted in the Local Court at Lithgow for two breaches of clause 135 of [the Regulation]. 6. NJA ... was fined a total of $10,000. 7. Mr ... Brock, the driver of the vehicle transporting the Dangerous Goods the subject of these proceedings, has been convicted in the Local Court at Campbelltown for five breaches of clauses 83(1), 101(1), 108, 132 and 137 of the ... Regulation. 8. Mr Brock was fined a total of $800."

Documents Annexed to the ASF

Tab "1" to the ASF is the extract from the ADG Code (see [17A] above) defining and classifying into divisions and packing groups various substances and articles covered by the code. There are nine classes, rated in accordance with the hazard or the most predominant of the hazards that those substances present. Some classes are divided into divisions, and the code points out that the numerical order of the classes and divisions "is not that of the degree of danger". The code covers explosives, gases, flammable liquids, flammable solids and the like, oxidizing substances and organic peroxides, toxic and infectious substances, radioactive material, corrosive substances and miscellaneous dangerous substances and articles.
Tab "2" comprises the Dangerous Goods Policy of the defendant company, dated 1 October 2010. That policy requires the company to provide all members of its team with adequate training and education within the excepted guidelines and regulations. All team members and contractors are expected to comply with those standards. It also requires the education of clients; the provision of appropriate facilities and equipment; investigation of dangerous goods incidents; and the implementation of remedial action; maintenance of a spill response and reporting system; and cooperation with all government bodies engaged in dangerous substances enforcement. Team members, vehicles, trailers and equipment must meet governing legislation and standards for the road (and rail) transport of dangerous goods within Australia, and the company is obliged to respond quickly and openly to any non-conformance with its dangerous goods procedures.
Tab "3" comprises Section 5 "Dangerous Goods" from the company's Operations Procedure Manual. It deals in detail with the loading of dangerous goods, emergency response procedure, and issues of compliance involved with loading operations, with emphasis on "loader responsibilities". Only "compatible" substances are to be transported together, and load securing devices in good condition are required, as is correct shipping documentation. The manual includes ("example 13" in Tab 3) a "Segregation Wheel", which deals with compatible and incompatible substances. The specific requirements include ensuring that all dangerous goods are marked or labelled with appropriate "dangerous goods" information. Those markings must be clearly visible among loaded freight. A vehicle loaded with dangerous goods must be "placarded" in accordance with the ADG Code and cls 78 and 79 of the Regulation (see "Example 12" in Tab 3). The strict requirements and examples of documentation are set out in the manual.
Tab "4" contains a series of photographs taken by the investigators. They depict the vehicle as not placarded, and rather clumsily loaded. Only some freight materials are adequately secured, and only some are on pallets secured by cling wrap. Several photographs show that some pallets, and other parts of the load, had moved in transit. The prosecutor does not allege that the necessary documentation was not carried on the truck, but photograph P21 indicates clearly that it was not carried on the driver's door, in accordance with the Regulation. The absence of the required fire extinguisher is also clearly indicated in photographs P23, P24, P26 & P27.
Tab "5" of the ASF includes a table entitled "Incompatibility based on Classification". Incompatibility is defined, and, set out in matrix form, the Court sees the application of the principles.

The Defendant's Evidence

The prosecutor relied only on the ASF and its annexures, but, without objection, the defendant responded by reading three affidavits and calling one witness (Curtis). Two affidavits were provided by the defendant's national compliance manager Maureen Kemp, and one by Curtis. Counsel for the defendant (Mr T Howard SC) sought and obtained agreement from the Court and the prosecutor for Curtis to give short oral evidence (Tpp5 - 6), during which he gave more detail of the serious reaction of the senior staff and the directors of the defendant to the incident, and, on behalf of the company, expressed the company's remorse and contrition. The prosecutor did not seek to ask him any questions (Tp6, L17).
Curtis has been employed by the parent company since 6 September 1980, and has held the office of national manager of the defendant in Australia, since 4 April 2011. He is responsible for all aspects of the defendants operations in all parts of Australia, and, in particular, for its compliance with its operations under the dangerous goods regimes in each state and territory. He expressed deep and genuine remorse and contrition for the subject breach of s 9, and the company's commitment to avoiding and preventing any recurrence. The company was "horrified" by the subject incident (Tp6, L1) - it takes compliance with the DGA and all its other statutory obligations, very seriously, and (Tp5, LL37 - 40) would welcome input from the EPA.
Curtis deposed that the founder of the group, its current chairman (Bruce Plested), has instilled in the company "a culture of strong community responsibility with an emphasis on early learning and achievement through education", especially through its role in the "Duffy Books In Homes" programme in New Zealand, and now (since 2001), in Australia, as "Books In Homes Australia". The programme targets schools from remote or low socio-economic circumstances. Since its inception it has supplied more than a million books of choice to more than 200,000 students from almost 400 schools across Australasia. Company staff attend school book-giving assembles, and are involved in a mentoring program to promote and encourage the enjoyment of learning by the reading of books. As the Mainfreight business grows in Australia, Curtis says the company intends increasing its involvement with this programme.
In his affidavit Curtis also detailed the company's initiatives on reduction of the various environmental impacts of its operations.
Kemp's principal affidavit was sworn on 28 February 2014. She has been the defendant's national compliance manager since May 2011, but an employee of the defendant since February 2004. Her present role involves the provision of advice and recommendations on the regulation of dangerous goods, and the provision of training on dangerous goods and work health and safety (for which she is appropriately trained).
She went on to detail what steps the company has taken, since November 2011, to improve its compliance procedures, and to ensure that the compliance failures which gave rise to the present prosecution do not occur again. Operational compliance measures include a dangerous goods vehicle check list which must be completed before a vehicle leaves a branch. There has been a major increase in emphasis on training, including operational training on loading, use of gates, load restraint, segregation etc.
There were insufficient dangerous goods co-ordinators at the Prestons branch in 2011, and the numbers have since increased from 4 to 11. Those co-ordinators complete appropriate training units provided by an independent registered training organisation. A dangerous goods audit of each branch is now conducted annually, and dangerous goods is a component of the defendant's human resources development and training team. Quality audits are done twice a year, to identify any necessary additional training, or back up assistance. An emergency response plan had been prepared in 2010, and has been the subject of ongoing review. It is incorporated in the company's Driver Dangerous Goods Handbook, a copy of the July 2013 edition of which she annexed to her affidavit.
She also detailed other training provided, and other initiatives. For example, the company's sales team highlights, in its presentations to prospective clients, the need to complete the relevant transportation documents accurately.
She also detailed the various accreditations the company has achieved including TruckSafe accreditation at a national standard. Relevant documents are exhibited to the affidavit. Drivers are required to complete a check list regarding dangerous goods prior to setting off (Annexure MK1, p21). The check list requires the driver to certify awareness of the dangerous goods content of his load, completion of the appropriate dangerous goods transport documents, the correct location of the transport documents in an emergency holder in the vehicle, freight restraint, fire extinguishers, placarding, emergency equipment, proper segregation, and route.
The very comprehensive Mainfreight Transport Chain of Responsibility Compliance Manual 2012, as revised, is also in evidence (Exhibit MK5 to Kemp's primary affidavit). It includes various policies including drug and alcohol, speed compliancy, dangerous goods, environment protection, OH&S, driver fatigue and forklift and pedestrian policy, and an "Outside Hire Induction Booklet".
Kemp detailed, in her primary affidavit, the dangerous goods courses the company conducts (par 14), and the assessment of performance completed at the conclusion of each course. She deposed (par 15) that 85% was considered a pass mark. In her second affidavit (21 March 2013), she deposed that the pass mark of 85% was introduced, after the offence, in about March 2013. In January 2014, it was increased (par 6) to 90% for Mainfreight staff, and 100% for ChemCouriers staff.
In her second affidavit, she also deposed (par 8) to developing an online dangerous goods refresher course, to be completed by staff and contractors every three months. There will be an online test at the conclusion of the learning module, and the pass mark has been set at 90%.

Consideration

The first thing to note in respect of the subject breach is that it did not come to notice as a result of any incident or emergency, but as a result of a random compliance operation by the prosecutor.
The second thing to note is the absence of, and the non-charging of, actual environmental harm arising from the subject beach.
The third thing to note is the involvement of large quantities and a wide range of hazardous and incompatible "dangerous goods".
The fourth thing to note from the evidence is that the defendant had appropriate, if not adequate, policies, training, and procedural manuals in place (ASF 104), but failed to observe them adequately, let alone "rigorously" (prosecutor's subs par 57), so causing a "systemic failure" (prosecutor's subs, par 37; Tp29, LL24 - 41, p30, LL4 - 7, and p34, LL21 - 23).
The failures alleged are particularized at (ASF 70 - 104 - see [17G] above), and may be briefly noted as (1) failure to placard the load appropriately, (2) inattention to incompatibility in the load, e.g. inadequate segregation of the load, (3) poor restraint of the load, and (4) absence of required equipment and information.
These failures are alleged to generate a serious and foreseeable risk of harm to people, property, and the environment (ASF 105 - 114) in terms of "shifting" (of the load), fire or explosion.
Because of its status as a "prime contractor" under the legislative and regulatory regime, and the "high degree of control" it had over the operation, the defendant bears a "significant responsibility" for the breach and any consequences of it.
Its culpability is not reduced by the fortuitous absence of actual harm (Tp15, LL9 - 10), and its counsel accepted that the defendant had committed a "significant breach" (Tp26, L19), and is more culpable than NJA and the driver, Brock, upon whom the Local Court has already imposed fines, the basis of which has not been shared in either instance with this Court (Tp27, LL32 - 46).
Section 3A of the Crimes (Sentencing Procedure Act) 1999 ("CSP Act") provides that the purposes for which the Court may sentence an offender 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.
With these purposes in mind, the Court must impose a penalty appropriate to the nature and gravity of the offence through an 'instinctive synthesis' of all the relevant objective and subjective circumstances of a particular case: Markarian v R [2005] HCA 25; 228 CLR 357, at [51].
The starting point for the process of "instinctive synthesis" is determining the objective seriousness of the offence, as this sets the "range" of any appropriate sentence.

Objective seriousness

Preston ChJ usefully discussed the process of determining objective seriousness of environmental offences, in Plath v Rawson ("Plath") [2009] NSWLEC 178; 170 LGERA 253, at [48]: In determining the objective gravity or seriousness of each of the offences in this case, the circumstances to which the Court may have regard include: (a) the nature of the offences; (b) the maximum penalties for the offences; (c) the harm caused to the environment by commission of the offences; (d) the state of mind of the offender in committing the offences; (e) the offender's reasons for committing the offences; (f) the foreseeable risk of harm to the environment by commission of the offences; (g) the practical measures to avoid harm to the environment; and (h) the offender's control over the causes of harm to the environment.

Nature of the Offence

An offence will be more objectively serious if it offends, or undermines, the objectives of the legislative scheme creating the offence, Plath, at [49].
The purpose of the DGA is set out at s 2 as follows: "to regulate the transport of dangerous goods by road and rail in order to promote public safety and protect property and the environment".
Section 9 of the DGA, plays a fundamental role in achieving the stated aims of the act by punishing those who do not meet their obligations under the Act. By failing to meet its obligations, the defendant acknowledged it "caused [a] risk of harm to the driver, members of the public, emergency services personnel, [and] property and the environment" (ASF 105).
Such risk is clearly contrary to the promotion of public safety, and the protection of property and the environment, and thus the stated purpose of the DGA, therefore increasing the objective seriousness of the offence.

Maximum Penalty

The maximum penalty for the particular offence charged in this matter is $275,000. In some earlier (pre 2008) relevant cases it was $250,000. Both the current penalty and that increase are relevant in sentencing. The maximum penalty is a relevant factor in determining the objective seriousness of the offence as it "reflects the public expression by Parliament of the seriousness of the offence": Camilleri's Stock Feeds Pty Limited v Environment Protection Authority (1993) 32 NSWLR 683, at 698.
Recently, Pepper J, in Environment Protection Authority v Orica Australia Pty Ltd (the Nitric Acid Air Lift Incident), said, at [115]: There is a spectrum of offending behaviour covered by a given offence and imposition of the maximum penalty is necessarily reserved for the worst case for which the penalty is prescribed. The High Court in Markarian (at [31]) explained that: …careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick.
Accordingly, appropriate weight must and will be given to the maximum penalty for the offence, noting that it, unlike some other environmental penalties, has not increased very dramatically over recent years.

Risk of Harm

Although no actual harm arose from the defendant's breach of the DGA (see ASF pars 105 - 114), the increased risk of harm occurring as a result of the defendant's actions and failures is a relevant consideration in determining the objective seriousness of the offence. Preston ChJ said in Environmental Protection Authority v Waste Recycling and Processing Corporation ("Waste") [2006] NSWLEC 419; 148 LGERA 299, at [145]: Harmfulness needs to not only be considered in terms of actual harm, the potential or risk of harm should be taken into account
The risk of harm associated with the defendant's conduct is particularised in the ASF (pars 105 - 114), and briefly summarized above ([17H]).
The defendant submitted (par 5) that the increased risk of harm, serious or otherwise, caused by its breach of s 9, "does not assist in identifying where the subject offence lies in the spectrum of offences under that section", because, by its very nature, any offence under s 9 of the DGA will result in an increased risk of harm, even if no actual harm occurs. Accordingly, counsel for the defendant said (par 7): "the fact that there was admittedly a risk of serious harm eventuating as a consequence of the commission of the offence does not set this case apart from past cases in which offenders have been sentenced for this offence".
Counsel for the parties relied on a common list of authorities, cases decided under both the present regime and the one which preceded it, but they disagreed on which of the cases provided the appropriate level of guidance for the present case, i.e. where on the "spectrum" of harm and culpability does this case sit?
The only breach alleged in Environment Protection Authority v Patrick Distribution Pty Limited ("Patrick") [2006] NSWLEC 123; 144 LGERA 210, was the defendant's failure to placard a dangerous load. The risk of harm associated with that failure was said (at [27]) to be: ...the potential to prejudice the safety of road users and risk harm to property and the environment. It also had the potential to prejudice the safety of those other drivers and emergency services personnel who attended the accident scene.
As stated in the ASF in this matter (ASF 108), the prejudice suffered from a failure to placard stems from the inability of emergency services personnel and others to identify dangerous goods, so reducing their ability to deal with any possible accidents effectively/safely.
In Patrick, Pain J imposed a fine of $15,000 less 35% discount, i.e. $9,750, and, as agreed by the parties, made no order as to costs.
In the present case, not only was the load not placarded, but the defendant was in contravention of a number of the regulations, increasing the risk of harm in a number of respects, as particularised in the ASF.
In contrast to the relatively minor risk of harm caused in Patrick, the case of Environment Protection Authority v MacDermid Overseas Asia Ltd ("MacDermid") [2007] NSWLEC 225 involved not only a significant risk of substantial harm, but also actual harm to the environment.
In that case the defendant packed, loaded and consigned the dangerous load the subject of the charge. The truck carrying the load was subsequently involved in an accident, resulting in significant leakage of dangerous chemicals from the vehicle. This was a case of incompatibility of chemicals in the load, and a failure to properly segregate them. Fortunately, the dangerous substances did not mix as a result of the accident, but Jagot J noted and accepted expert evidence on the consequences of their mixing. Her Honour said, at [20]: Mr Ritchie concluded that packing the silver cyanide and hydrofluoric acid on the same pallet was a dangerous and unsafe situation even absent the goods mixing, as a spill of either would have involved highly toxic material which could have killed or injured people handling the damaged load without protective clothing and could have contaminated foodstuffs. Silver cyanide and hydrofluoric acid are incompatible goods as they react together to create hydrogen cyanide. Hydrogen cyanide is a liquid at room temperature, but highly volatile, producing an extremely toxic vapour that has caused many deaths. The plastic container for silver cyanide was not strong enough except if protected by further outer transport packaging such as a cardboard box. The silver cyanide and hydrofluoric acid packed by the defendant on the same pallet could have generated large quantities of hydrogen cyanide. If they mixed in a closed area (such as the curtain sided trailer in which they were located) then any person who entered that area or opened the door to the trailer could have been killed or seriously injured. If they mixed in an open area, then anyone within a 2 metre radius could have been seriously harmed by the toxic vapours. The gas generated by 0.5kg of the silver cyanide reacting with the acid would result in a concentration of hydrogen cyanide five times that needed to cause a fatality if a person breathed the air in an enclosed space for 30 to 60 minutes and is 200 times the maximum limit permitted for the workplace. The fact that the goods were packed right next to each other and the accident increased their chance of mixing. Breaking of both containers was likely given the weight of the load and the damage that occurred during the accident. The way the load shifted during the accident meant that the containers did not break. Had they both broken the probability of the two chemicals mixing and releasing the highly toxic hydrogen cyanide was high.
Her Honour concluded, at [35], that she was satisfied beyond reasonable doubt that the packing of the load carried a real risk of the containers breaking during an accident and the chemicals mixing and releasing toxic hydrogen cyanide gas, and she continued, at [40]: The defendant's counsel appropriately acknowledged that the potential danger associated with the defendant's offence required a finding that the offence was objectively serious. The significant potential for harm by reason of the defendant's failure to segregate the incompatible goods silver cyanide and hydrofluoric acid permits no other conclusion. The defendant's failure to complete the dangerous goods section of the consignment note also contributed to the unsafe consignment and hampered the clean-up, increasing the uncertainty for emergency personnel.
It took two days for emergency crews to render the site safe ([10]) and the clean-up effort was significantly hampered by the failure of the defendant to properly complete shipping documents that identified the dangerous goods in the load ([64] - [65]).
Jagot J arrived at a penalty of $100,000, and discounted it by 25%, to $75,000, plus agreed costs of $55,000.
The risk of harm associated with the present offence is significantly less than that involved in MacDermid, but the increased risk of harm is significant, and I think that it compares with that in the related cases of Environment Protection Authority v Moama Refinery Pty Ltd ("Moama") [2002] NSWLEC 244 (Bignold J) and Environment Protection Authority v Embridge Crest Pty Ltd ("Embridge") [2002] NSWLEC 238 (Cowdroy J).
The defendant in Moama loaded and packed the dangerous goods the subject of the charge, and, in Embridge, the independent transporter contracted to transport the goods was charged separately.
Like here, there were a number of breaches of the regime, some more serious than others, including: a failure to placard; inadequate shipping documents; no emergency procedure guide or safety equipment provided; and inadequate training provided to staff who are involved in the transport of dangerous goods.
The load contained 144 x 200 Litre drums of a flammable petrol-like mixture. The drums were in poor condition, and were not sealed properly. When the truck stopped at a heavy vehicle checking station, the RTA officer "observed a white foaming substance on the turntable of the truck and over one of the trailer axles with clear liquid dripping from it on the weighbridge platform below which smelt strongly of a chemical or fuel" (Moama [19]). The fire brigade was called, and the commander of the fire brigade observed that 6 puddles of the chemical, about 1-2 sqm in size had formed ([20]). Bignold J concluded that the expert witness was correct in saying that it was "more good luck than anything else" that a fire did not occur ([50] par "39").
Out of a maximum penalty then of $250,000, Bignold J fined the defendant in Moama $75,000, discounted by 40% to $45,000, plus costs to be determined. In Embridge, Cowdroy fined the defendant $40,000 less 25%, i.e. $30,000, plus costs.
In terms of the risk of environmental harm, I regard Moama/Embridge as comparable with the present case, despite the absence of actual harm, such as a leak. This case involves incompatible goods, and the photos annexed to the ASF (Tab 4) show that, the failure to ensure that the load was properly restrained caused pallets and individual items of freight within the load to fall over, move or otherwise become dislodged within the load (ASF 89 - 90).
As such, I find that the defendant's actions created a significant theoretical risk of harm to persons, property and the environment, comparable with that involved in Moama/Embridge.
As a longstanding dangerous goods transporter (since 1989), that level of risk was clearly foreseeable by the defendant, a conclusion it did not dispute.

Control over the Causes of the Offence

By virtue of its position as the loader and prime contractor, the factors giving rise to the offence were completely within the defendant's control.
I accept the prosecutor's submission (par 44) that the extent of the defendant's control over the causes that gave rise to the offence is demonstrated by the following: (a) the Defendant was responsible for the transportation of the dangerous goods (ASF 3); (b) the Defendant's employees loaded the dangerous goods onto the vehicle at its depot in Prestons NSW (ASF 3); (c) the load was restrained at the Defendant's depot prior to the vehicle's departure; (d) the vehicle was at all relevant times under the Defendant's control and direction (ASF 19); (e) the Defendant was responsible for ensuring that its staff were adequately trained and supervised, in order to ensure that the dangerous goods were transported in compliance with the requirements of the dangerous goods legislation; and (f) the Defendant was responsible for ensuring adequate operating systems, procedures and practices were designed and implemented at its place of business in order to ensure dangerous goods were transported in a safe manner.
I agree with the prosecutor's submission (par 46) that the fact that other actors were charged with breaches (ASF 5 to 8), in no way diminishes the defendant's responsibility or culpability.

Practical measures that could have been taken to avoid the risk harm to the environment

In Waste, Preston ChJ, said at [113]: An offence is objectively more serious if commission of the offence and the risk of harm occasioned by the commission of the offence, are foreseeable and there are practical measures that could be taken to prevent, control, abate or mitigate the occurrence of the offence or the harm, but those practical measures are not taken
At the hearing, the defendant's counsel took the Court to the dangerous goods policy the defendant had in force at the time the offence occurred (ASF Tab 2) and an accompanying operations manual (ASF Tab 3) (Tp28, L50 - Tp29, L3). He submitted that the existence of these guidelines showed that the company itself had regard to the legislation, and strove to comply with it (Tp30, LL4 - 6), but he rightly accepted that "procedures are only as good as their implementation and they weren't properly implemented here" (Tp29, LL45 - 46 - and see ASF 101 - 103).
I accept the submission made by the prosecutor (par 37) that this demonstrates a "substantial degree of systemic failure in relation to its obligation to ensure that the dangerous goods ... were transported in a safe manner". As such, the practical measures which were in place prior to the offence do little to lessen the objective seriousness of the offence.

Conclusion on objective seriousness

In my opinion, the offence lies in the moderate range of objective seriousness, having regard to: 1. The offence involved a comprehensive failure to ensure safe transportation, and so directly undermined the purpose of the legislative scheme, which is to promote safe practices in the transport of dangerous goods, and to minimise the risk of harm; 2. The numerous breaches of the regulations gave rise to a serious risk of harm, in nature and degree; 3. That risk of harm was foreseeable, given the nature of the dangerous goods, and the defendant's involvement in the transportation of dangerous goods for a significant period; 4. The defendant exercised complete control over the causes of the offence; and 5. The defendant's policy and procedures relating to the handling of dangerous goods, if not themselves completely adequate, were not observed.
My conclusion of "moderate culpability", albeit towards the high end of that range, was accepted by the defendant.

Aggravating and Mitigating Factors in Sentencing

The CSP Act lists, in s 21A, the aggravating and mitigating factors to be considered by the Court in its "instinctive synthesis".
As I have said elsewhere, and remarked again during submissions in the present matter (Tp43), the absence of mitigating factors is not an aggravating factor, and vice versa, and the factors in s 21A come into play when the Court has formed a view on the sentence indicated by the objective seriousness found on the evidence.
In the present case, the only aggravating factor asserted by the prosecutor concerns that in s 21A(2)(d), i.e. "previous convictions", to which I will return.
Some mitigating factors are asserted in the present case, and some of them are conceded by the prosecutor, namely (1) "not substantial harm" (s 21A(3)(a)), (2) "good character" (s 21A(3)(f)), (3) an early plea of guilty (s 21A(3)(k) and s 22), and (4) "assistance …to …authorities", in both investigation and prosecution (s 21A(3)(m) and s 23).
Clearly, the defendant pleaded guilty at the earliest opportunity, qualifying thereby for the maximum R v Thomson, R v Houlton (2000) 49 NSWLR 383 discount of 25%.
Mr Howard submits that the defendant's "contrition and remorse" (s 21A(3)(i)) is evidenced by the written and oral testimony of Curtis, his presence and that of another senior manager at the hearing, and the significant measures the defendant has now put in place to prevent further incidents of this type occurring in the future.
As the Chief Judge noted, in Waste at [131]: Contrition and remorse will be more readily shown by the offender taking actions, rather than offering smooth apologies through their legal representatives
Here, the defendant has implemented a range of measures, outlined by Kemp, which seek to prevent similar incidents occurring in the future.
I am prepared to allow some discount for contrition and remorse.
Mitigating factors usually result in a sometimes rather arbitrary reduction in penalty of between 10% and 40%: See my discussion of discounts in Newcastle Port Corporation v MS Magdalene Schiffahrtsgesellschaft MBH; Newcastle Port Corporation v Vazhnenko ("Magdalene") [2013] NSWLEC 210, at [269] - [278]. In this case I am prepared to allow a total discount of 30%.
I return, therefore, to the disputed aggravating feature, "previous convictions".
The prosecutor submitted (pars 66 - 72) that the defendant's regulatory history - it has been issued with, and has paid 16 penalty infringement notices in relation to breaches of the dangerous goods legislation since 2005 - demonstrates a continuing attitude of disobedience to the law, warranting a more severe penalty; Environment Protection Authority v Austar Coal Mine Pty Ltd ("Austar") [2011] NSWLEC 252, at [38]; see also Tp46, LL40 - 42.
In some cases, the issuance and payment of penalty infringement notices may establish a continuing attitude of disobedience to the law.
Preston ChJ said in Austar (at [36] - [39]): 36 Austar has not been prosecuted previously for any environmental offences. However, since Austar began operating the Austar Coal Mine in 2005, it has been issued with two penalty notices. The first, on 1 June 2011, relates to the incident the subject of this charge. Austar was issued with a penalty notice for its delay in notifying the EPA of the incident on 29 July 2010. The fine in the penalty notice has been paid. 37 The second, on 6 November 2009, was for a breach of s 120 of the Protection of the Environment Operations Act after a discharge of coalmine tailings into Bellbird Creek. In addition to issuing the penalty notice, OEH varied Austar's environment protection licence to include a series of pollution reduction programs requiring Austar to carry out clean up activities at Bellbird Creek. The fine in the penalty notice has been paid and Austar has undertaken the pollution reduction program. 38 Austar's prior criminality is not part of the objective circumstances of this offence and cannot be used to impose a sentence which is greater than the upper boundary of a proportionate sentence set by the objective gravity of the offence. Nevertheless prior criminality can still legitimately be taken into account in fixing where, within the boundary set by the objective circumstances, a sentence should lie. Prior criminality is relevant to show whether the offence is an uncharacteristic aberration or whether the offender has manifested a continuing attitude of disobedience to the law. If so, the purposes of retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. 39 In this case, however, the two prior penalty notices do not show that Austar has a continuing attitude of disobedience to the law.
The present defendant submitted (par 31) that: "without more information about the circumstances of each allegation, the Court knows too little to draw the inference under the current regime that payment of a penalty notice is an admission of the conduct alleged in the notice".
No background details have been provided by the prosecutor in respect of the various notices, and the Court is mindful that any factor adverse to the defendant, regarding either the objective or subjective circumstances of an offence, must be proved beyond reasonable doubt: Duffy v R [2009] NSWCCA 304, per Fullerton J at [21].
I am not satisfied beyond reasonable doubt that the defendant did actually engage in the conduct alleged in the notices, and, therefore, cannot conclude that it has a continuing attitude of disobedience to the law.

General Deterrence

Section 3A(b) of the CSP Act provides that one of the purposes for which a court may impose a sentence is to prevent crime by deterring the offender (specific deterrence), and other persons (general deterrence), from committing similar offences.
General deterrence has been held to be of particular importance in sentencing for environmental offences: see Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; 145 LGERA 234, per Preston ChJ at [140]: This is particularly relevant to environmental offences. Persons will not be deterred from committing environmental offences by nominal fines.
In Patrick, Pain J specifically acknowledged the importance of deterring others from transporting dangerous goods in an unsafe manner, given the potential harm which can arise to the environment and persons from exposure to dangerous chemicals (at [30] - [31]).
Therefore, the sentence I impose must be sufficient to deter others involved in the transport of dangerous goods from committing similar offences.

Specific Deterrence

As the defendant continues to operate in the transportation industry, involving the handling and transport of dangerous goods, specific deterrence is a relevant sentencing consideration; Environment Protection Authority v Kitco Transport Australia Pty Ltd ("Kitco") [2013] NSWLEC 39, at [121]; Environment Protection Authority v George Weston Foods Ltd ("George Weston") [2013] NSWLEC 16, at [87].
The prosecutor argued for some specific deterrence in the present case, and the defendant's counsel (par 18) agreed that specific deterrence has a "limited role to play". Since the commission of the offence, the defendant has introduced new, and has otherwise improved its former, training and operational procedures, which should significantly reduce the likelihood of its committing any further offences of this kind.
Contrary to the submission of the prosecutor (pars 58 - 59), I do not accept that the audit program is not operating at a "satisfactory" level, and, therefore, warrants a greater element of specific deterrence in the determination of an appropriate penalty. I am satisfied that the defendant continues to aim for a higher standard.
I accept that there is a need for some element of specific deterrence.

Evenhandedness

Craig J said in Chief Executive of the Office of Environment and Heritage v Bombala Investments Pty Ltd ("Bombala") [2013] NSWLEC 185; 199 LGERA 236, at [115]: The principle of evenhandedness in sentencing requires the court to have regard to the general pattern of sentencing for offences of the kind being considered", being careful to identify the factual differences among cases.
The defendant's counsel accepted that this case is more serious than Patrick, George Weston, and Kitco (Tp27, LL10 - 15). He submitted that the matter is less serious than Moama/Embridge, but that, as the maximum penalty has been slightly increased since those cases ($250,000 up to $275,000), a fine around the Moama range of $45,000, after discounts, is appropriate (Tp28, LL15 - 21).
In contrast, Mr Zanello for the EPA submitted that: … the present case before your Honour is at the upper end of the moderate range or the lowest end of the high range … But if pressed and in order to respond to that if there is a range of moderate cases this one falls into the upper end and I would respectively submit may be slightly more objectively serious than that in McDiarmid (sic) but not significantly (Tp21, LL33 - 38).
I am of the opinion that, contrary to the defendant's submission, the circumstances of this case are slightly more objectively serious than that giving rise to the prosecutions in Moama/Embridge, but certainly less serious than MacDermid, given the high risk of harm involved in that case (see [62] - [73]).
The present defendant exercised a greater level of control than the defendants in Moama/Embridge. In Moama, the defendant was responsible only for loading and packing the dangerous goods, whilst the transportation of those goods was the responsibility of the defendant in Embridge. In this case, the defendant was responsible for all of packing, loading and transporting the dangerous goods. Even though another company (NJA) owned the truck, the defendant had complete control of the use of the truck, and directed its driver, (see ASF pars 18 - 19).
For this reason, I find the conduct of the defendant is slightly more objectively serious than in Moama/Embridge.
Bignold J, in Moama, commented on the objective seriousness of the offence as follows at [63]: I am of the opinion that the admitted offence should, in the light of the found facts, be regarded as a serious breach of the duty cast upon the Defendant as the owner and consignor of dangerous goods. That duty (like the duty cast upon other persons involved in the transport of dangerous goods by road or rail) is a self-evidently important duty in order to promote the public safety and welfare because of the intrinsic nature of dangerous goods and because of the very detailed statutory requirements in respect of dangerous goods (including their transport) which have been in place in NSW for the past quarter Century (ie since the enactment of the Dangerous Goods Act 1975). On the facts established in the present case, there were multiple facets of the breach of the statutory duty (some obviously more important than others), the cumulative effect of which, establish an objective seriousness of the admitted offence and a significant degree of culpability on the part of the Defendant.
I find His Honour's statement equally applicable to the present circumstances.
The offending conduct involved a number of breaches, each contributing to an increased risk of substantial harm being caused to the environment, persons and property. The defendant is, for all substantive purposes, solely responsible for this conduct, with the owner of the truck having only very limited control over the causes of the offence.

Parity in Sentencing

As other actors in the present breach have been dealt with by the Local Court, the principle of parity applies to the present sentencing decision.
This court has not been informed of the considerations that guided the sentencing of NJA and Brock, but it is apparent from all I have said that I am of the view that Mainfreight is far more culpable, on the facts, than the passive owner, and the driver on the day. Mr Howard accepted that relative culpability: See discussion of parity by Craig J in Environment Protection Authority v Aargus Pty Ltd; Environment Protection Authority v Kariotoglou; Environment Protection Authority v Kelly [2013] NSWLEC 19 at [115] - [118].

Costs

An order for costs in a prosecution such as the present is so "routine" that it does not result in a proportionate reduction in the penalty to be imposed: Liverpool City Council v Leppington Pastoral Co Pty Ltd [2010] NSWLEC 170, at [49].
During the hearing, the parties reached agreement on the amount of prosecution costs which the defendant agreed to pay, i.e $32,500 (Tp25, L36).

CONCLUSION - Appropriate Sentence

Having considered all the objective and subjective circumstances in this case, the sentences imposed in comparable cases, and the need for general deterrence, I consider the appropriate sentence to be a fine of $80,000, with a discount of 30% for the subjective circumstances.
This brings me to a fine of $56,000.
The orders of the Court are, therefore: 1. The defendant is convicted of the offence charged in the summons. 2. The defendant is fined the sum of $56,000. 3. The defendant is ordered to pay the prosecutor's costs in the agreed sum of $32,500. 4. Exhibit P1 is to be retained in the Court file.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 February 2015

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