Environment Protection Authority v Moama Refinery Pty Limited

Land and Environment Court (NSW)|2002-12-19|Before: Bignold J, Mr P

CITATION : Environment Protection Authority v Moama Refinery Pty Limited [2002] NSWLEC 244 PROSECUTOR: Environment Protection Authority PARTIES : DEFENDANT: Moama Refinery Pty Limited FILE NUMBER(S) : 50041 of 2002 CORAM: Bignold J KEY ISSUES: Environmental Offences :- failure by consignor of goods transported by road to ensure as far as practicable that the goods were transported in a safe manner LEGISLATION CITED: Road and Rail Transport (Dangerous Goods) Act 1997, s 37 CASES CITED: R v Olbrich (1999) 199 CLR 270 DATES OF HEARING: 18/11/02 DATE OF JUDGMENT: 12/19/2002

PROSECUTOR: Mr T Howard, Barrister SOLICITORS Solicitor Environment Protection Authority

IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Matter No . 50041 of 2002 Coram : Bignold J 19 December 2002

The Defendant has pleaded guilty to a charge of an offence against the Road and Rail Transport (Dangerous Goods) Act 1997 (the Transport Act) s 37(1) in that on or about 27 April 1999 it, being involved in the transport of dangerous goods by road, did fail to ensure, as far as was practicable, that the goods were transported in a safe manner. The Defendant was the owner and consignor of the goods, but not the transporter. (A separate charge of an offence against the same section has been brought against the transporter but the hearings of these separate charges were not concurrent.)

According to the particulars endorsed upon the amended Summons filed in Court at the trial, the relevant details of the offence were as follows: a) Dangerous goods

Solvent B Premium and/or Solvent B and/or unleaded petrol and/or naphtha contained within about 144 drums, being dangerous goods class 3 (flammable liquid).

Roads in New South Wales from Hillside Lane, Moama, to the Pacific Highway at or near Mount White, including the Cobb Highway, the Hume Highway and the Pacific.

c) Involvement in the transport of the dangerous goods: · loading and packing the dangerous goods onto truck Federal registration number VV58DW and trailer, Victorian registration 36747S (the vehicle) for transporting by road; and/or · loading the dangerous goods into the drums that were loaded onto the vehicle for transport by road; and/or · placarding the vehicle used to transport the dangerous goods by road; and/or · marking the drums in which the dangerous goods were contained for transport by road; d) Acts or omissions constituting a failure to ensure that, as far as was practicable, the dangerous goods were transported in a safe manner:

(i) using drums that leaked; and/or were not structurally sound; and/or were damaged; and/or were defective; and/or were not sealed correctly; and/or were not suitable for transporting dangerous goods; (iii) transporting the dangerous goods in the vehicle that was not appropriately placarded; and/or failing to ensure the required shipping documentation was carried; and/or failing to have on the vehicle the required emergency information; and/or (iv) failing to appropriately instruct and/or train and/or supervise persons employed and/or engaged by and/or permitted to perform tasks involved in the transport of the dangerous goods in the vehicle. e) Further particulars for the purposes of (d)(i): · the drums were rusted; and/or dented; and/or not reconditioned; and/or the bungs on the drums had no o-rings or gaskets; and/or g) Further particulars for the purposes of (d)(iii): · the vehicle was not placarded at the front of the vehicle; and/or the placard at the rear of the vehicle was not legible and/or adequately secured to the vehicle; and/or · an emergency Procedure Guide was not carried in the vehicle.

The Transport Act s 37 is in the following terms: 37. Duties concerning the transport of dangerous goods (1) A person involved in the transport of dangerous goods by road or rail who fails to ensure, as far as is practicable, that the goods are transported in a safe manner is guilty of an offence. (2) If a person involved in the transport of dangerous goods by road or rail fails to comply with a provision of this Act in circumstances where the person knew, or ought reasonably to have known, that the failure would be likely to endanger the safety of another person or of property or the environment, the person is guilty of an offence.

Maximum penalty: (a) if the failure results in death or serious injury to a person---$100,000 or imprisonment for 4 years, or both, for an individual or $500,000 for a body corporate, or (b) in any other case---$50,000 or imprisonment for 2 years, or both, for an individual or $250,000 for a body corporate.

The Transport Act s 6 contains the following definitions which are relevant to s 37 - dangerous goods means: (a) a substance or article prescribed as dangerous goods, or (b) a substance or article determined by a Competent Authority in accordance with the regulations to be dangerous goods. involvement in the transport of dangerous goods by road or rail includes: (a) importing, or arranging for the importation of, dangerous goods into New South Wales, and (b) marking packages and unit loads containing dangerous goods for transport by road or rail, and placarding containers and vehicles in which dangerous goods are transported by road or rail, and (c) consigning dangerous goods for transport by road or rail, and (d) loading dangerous goods onto a vehicle, or into a container that is to be put on a vehicle, for transport by road or rail or unloading dangerous goods that have been transported by road or rail, and (e) undertaking, or being responsible for, otherwise than as an employee or sub-contractor, the transport of dangerous goods by road or rail, and (f) driving a vehicle carrying dangerous goods by road or rail, and (g) being the consignee of dangerous goods transported by road or rail, and (h) being involved as a director, secretary or manager of a body corporate, or other person who takes part in the management of a body corporate, that takes part in an activity covered by this definition. transport, in relation to dangerous goods, includes: (a) the packing, loading and unloading of the goods, and the transfer of the goods to or from a vehicle, for the purpose of their transport, and (b) the marking of packages and unit loads containing dangerous goods, and the placarding of containers and vehicles in which dangerous goods are transported, and (c) other matters incidental to their transport. B. THE RELEVANT FACTS

The relevant facts are principally derived from the Statement of Agreed Facts (Exhibit 1).

In addition to Statement of Agreed Facts, there was some evidence (testimonial and documentary) at the trial addressing two factual issues upon which there was not complete agreement between the parties, namely -

(i) the condition of the drums containing the dangerous goods; and (ii) the nature and the degree of the risk of harm to life and property and the environment being created by the commission of the offence and more particularly by transport of the dangerous goods having regard to the condition of the containers.

The following summary of relevant facts reflects the Statement of Agreed Facts and my findings on the testimonial and documentary evidence relating to the two particular issues of fact, not embraced by the agreed facts. In so finding, I have applied the principle enunciated by the High Court in R v Olbrich (1999) 199 CLR 270 at 281 that it is for the Prosecutor to establish beyond reasonable doubt all facts that are adverse to the interests of the accused.

The Defendant is an Australian owned business which has since 1998 operated a hydrocarbon storage and processing facility or refinery at Moama, NSW a country town situate near the Victorian border. At the Refinery, Australian crude oil is refined to produce diesel, solvent and boiler fuel for sale within Australia.

At the time of the occurrence of the admitted offence, the Applicant employed 33 employees at the Refinery which operated 24 hours daily in 3x8 hour shifts and was manufacturing a product "Solvent B" by blending unleaded petrol and Naptha. Solvent B is classified "dangerous goods" for the purposes of the Transport Act.

The usual procedure employed at the Refinery about the time of the offence for the filling of the drums was as follows.

Drums are forklifted into the filling bay on pallets (4 drums per pallet) with 4 to 5 pallets being concurrently placed along the filling area. Thereafter, the drum-fillers check the drums to ensure that they were properly labelled and did not have cracks or holes, before removing the lids and filling the drums employing hoses and meters. Following the filling of the drums, the lids are replaced and tightened by spanner. After the filled drums were placed on the transport vehicle, there would be a final visual inspection of the load.

On and prior to the date of the commission of the offence, the Defendant had no written procedure in place for assessing whether drums were in a suitable condition to hold solvent, or for despatch, labelling and loading of drums.

There was an oral instruction that employees were not to use leaking drums or drums having an uneven or popped out base. Drum fillers were paid on the basis of so much for each drum filled.

Two of the three employees who were engaged in filling the drums involved in the commission of the offence regarded the lighting available at the Refinery serving the drum filling area and the loading area was of a limited or poor quality making it difficult to see whether drums were leaking. There is always a general odour of petrol or diesel present in the drum filling area.

On 27 April 1999, "Solvent B" was packed into some 144 x 200 litre capacity steel drums for the purpose of their being transported by road. Of the three employees who undertook the drum filling activity, two had not received any formal training in the requirements of dangerous goods packaging etc. After the drums were filled, they were loaded onto a semi-trailer attached to a 1989 Freightliner prime mover (with vehicle registration No VV58DW) which was not owned by the Defendant and was driven by Mr Ron Kelly, an employee of Embridge Crest Pty Limited, to whom was delivered by the Defendant's employees an internal sales order and a delivery docket. The driver was not provided with details of the consignor's name and contact telephone number, the United Nations number and class of dangerous goods or the packaging group designation for the goods or any emergency procedure guide. Mr Kelly left the refinery at 11.30 pm and drove in the loaded vehicle to Embridge's truck depot situate at Numurkah in Victoria.

At 12.30 am the following morning, another driver employed by Embridge, Mr Gary Matthews commenced the journey in the loaded vehicle destined for Lemon Tree, near Port Stephens in New South Wales.

Approximately at three hourly intervals, Mr Matthews stopped the vehicle and checked the load to make sure it was secure. On each of his stops, he tightened the ropes holding the drums and looked underneath the pallets to check that the drums were not leaking and were properly sealed.

At midday on 28 April 1999, Mr Matthews arrived at the Mount White Heavy Vehicle Checking Station which all vehicles exceeding a 4 tonne tare weight are required to enter.

When he stopped at the weighbridge, he could smell fuel or petrol. In the company of Mr Jenkins, an inspector with the Roads and Traffic Authority, he observed a white foaming substance on the turntable of the truck and over one of the trailer axles with clear liquid dripping from it onto the weighbridge platform below and which smelt strongly of a chemical or fuel. It was also observed that the vehicle displayed at its rear a dangerous goods placard but there was no such placard at the front of the vehicle.

The Roads and Traffic Authority officer thereafter called for assistance from the NSW Fire Brigade and the Woy Woy Station and the local Rural Fire Service each responded and arrived at the scene. The Commander from the Woy Woy Station observed liquid dripping from under the vehicle onto the roadway in about 6 spots which had formed a few small puddles (about 1 m2 in area). He also observed leaked liquid over the deck of the trailer. Thereafter, the HAZMAT Unit arrived and one of its officers observed four drums leaking their liquid contents.

In an attempt to ascertain which drums were leaking, one of the investigating officers climbed onto one of the drums which thereupon began to leak. This incident caused the decision to be taken to decant the contents of the drums which were observed to be leaking or which were thought to be capable of leaking because of their apparently poor condition. Late in the afternoon, officers of the Environment Protection Authority (the EPA) arrived at the Mount White Vehicle Checking Station and observed that the drums were in various states of repair, some being marked in places and some being badly dented and some having damaged or dented rim tops.

The consignee having been contacted, it sent a tanker to Mount White to take possession of the load. As they were removed from the trailer, each drum was inspected. In all, 76 of the 144 drums were decanted.

Soon after 9 pm that day, the investigating officers determined that the incident was now safely under control culminating in the police escort of the trailer and its load to a holding yard in West Gosford where the trailer and the drums were impounded by the EPA.

On 7 May 1999 EPA officers attended the impounded vehicle and load to conduct further inspections and sampling. As a result of this investigative process, seven of the drums that had been decanted on 28 April were kept in custody as evidence. They were photographed and videoed. An EPA officer described the condition of each of these drums as follows: Drum No. 1: The top of the drum was quite deformed, including the top rim. The base rim was also deformed and a significant amount of surface corrosion and peeling paint was evident. He did not see any obvious holes or splits in the drum Drum No. 2: There was some deformation of the top rim, some corrosion on the base and general surface rust and peeling paint. He did not see any obvious holes or splits in the drum. Drum No. 3: The bottom rim was dented and the base was lightly corroded. He did not see any obvious holes or splits in the drum. Drum No. 4: The drum was in reasonable condition. The drum had some light corrosion on the base. He could not see obvious splits or holes in the drum. Drum No. 5: The top of the drum had some deformation and it was fairly corroded on the base. He did not see any obvious splits or holes in the dum. Drum No. 6: The top rim of the drum was a little bent otherwise the drum was in reasonable condition. The drum had some light corrosion. He could not see any obvious splits or holes in the drum. Drum No. 7: The drum was in reasonable le condition. The drum had some light corrosion. He could not see any obvious splits or holes in the drum.

In addition to these seven drums, samples of the contents were collected from 16 drums when it was observed that ten of these sampled drums did not have an "O-ring" or gasket on the bung/lid, the absence of which meant that the drums cannot be correctly sealed.

Opinion evidence was given by Mr Donald James Riddle, the General Manager of Drum Reconditioners (NSW) who has had 26 years experience in the drum reconditioning industry and is the Chairman of the Australasian Container Reconditioners Association.

In August 2001 (ie some two and one half years after the commission of the admitted offence) he was asked to give his expert opinion based upon the photographic and video evidence that had been made by the EPA of the impounded drums in April and May 1999.

He prepared a written report dated 6 September 2001 for the EPA in which he records his opinions. In his affidavit sworn 25 July 2002 (Exhibit 13), he annexes a copy of that report and provides supplementary and explanatory comment on his report.

His Report contains a number of statements of his impressions of the photographic evidence and the video evidence. That evidence included the seven drums that had been decanted and retained in custody of the EPA and were the subject of the descriptions of their condition ascribed by an EPA officer that have earlier been recited.

Although Mr Riddle's Report comments in detail on each of these seven drums, his overall comment applicable to all seven drums is as follows: Quite obviously all of these drums have been used several times over a long period without having been reconditioned …………. If these drums were full then I would question the safety of the load for transport by road

In the "Summary" section of his Report, Mr Riddle, referring to the seven drums which had been decanted and the representative sample 16 drums with their contents intact expressed the following opinions: If we were to recondition the drums shown in the photos and on video, I would estimate a 10 - 20 per cent failure rate subject to internal condition (could be higher).

In his affidavit, Mr Riddle explained this statement as meaning "that that percentage of drums (10 to 20 per cent) would not be able to be reconditioned, purely because of their external physical condition".

Under cross-examination, Mr Riddle had put to him the contents of the two written statements prepared by Robert Sydenham, the Managing Director of Laverton Drum Recyclers Pty Ltd, which had been given to he EPA presumably during their official investigations of the commission of the offence in this case. (It is to be noted that the Summons charging the offence was not filed until nearly the expiry of the period of 3 years for the commencement of proceedings prescribed by the Transport Act, s 39(7).)

In the first of his statements (2 October 2000) Mr Sydenham stated that his company had been trading for 15 years supplying 2000 litre drums to the oil and chemical industry and that it had been supplying reconditioned drums to the Defendant for the period from August 1998 to October 1999.

During this period, the supply of reconditioned drums to the Defendant had occurred on 35 separate occasions and had involved the supply of a total of 5,888 drums for which the Defendant had paid a cost of $17 per drum. In April 1999, the Defendant had been supplied with 792 x 200 litre red painted drums.

All of the reconditioned drums supplied by the Company had complied with the company's established quality assurance procedures (which included sonic pressure testing of the drums).

Attached to Mr Sydenham's second written Statement (23 February 2001) are three photographs of 200 litre drums - (i) one being tested by the sonic leak detector; (ii) one fully reconditioned and ready for despatch; and (iii) one damaged drum. Speaking of the damaged drum, Mr Sydenham said that "it would not be considered for reconditioning by the Company due to the extensive damage to its top rim".

Although not so identified in the Statement, the photograph of the damaged drum appears to be identical with the photograph of one of the seven drums retained in custody by the EPA immediately following commission of the offence in this case (a copy of which latter photograph is annexed to Mr Riddle's Report).

In re-examination, Mr Riddle said that the photos and videos of the drums that he had been shown by the EPA for the purpose of giving his opinion in his Report in September 2001 "looked nothing like" the photograph attached to Mr Sydenham's Statement showing a fully reconditioned drum ready for despatch.

I am satisfied beyond reasonable doubt that a number of the drums inspected by the EPA officers on and soon after the date of the commission of the offence were in a damaged condition or were in a condition that lacked appropriate sealing mechanisms (by the absence of O-rings or gaskets on the bung lids) thereby rendering them liable to leak their contents whilst in transit. In particular, I accept M Riddle's opinions (i) that some 10 to 20 per cent of the 23 drums (the subject of the photographic and video evidence had been made available to him by the EPA in seeking his expert opinion) were not able to be reconditioned because of their damaged condition; and (ii) that the 7 drums (of these 23) which had been retained in the custody of the EPA had been in use for a long period without having been recently reconditioned. The evidence contained in Mr Sydenham's Statements of the supply of reconditioned drums to the Defendant does not cast any shadow of doubt over these findings. For whatever reason, these 23 drums were obviously not recently reconditioned drums.

However, I must emphasise that my findings as to the condition of the drums are confined to the 23 drums that I have referred to. Even though the 16 sampled drums were apparently a random selection by the EPA officers of filled drums, I am not satisfied to the criminal standard of proof, that I can simply extrapolate and apply the evidence of the condition of those 16 selected drums to the other 144 drums (less the seven that were kept in the custody of the EPA) that were involved in the commission of the offence.

The other fact in dispute concerns the nature and degree of risk of harm to life and property and the environment created by the commission of the offence.

This question is extensively discussed in the affidavit of Alan John Ritchie sworn 17 January 2002 (Exhibit 11). Mr Ritchie is employed by the EPA as its Manager Dangerous Goods and he has 27 years experience in dangerous goods transport and hazardous materials incident management. He has first hand experience with the statutory regimes in NSW and Australia concerning dangerous goods and their transport. He was the primary officer drafting the NSW Dangerous Goods Regulation 1978 being the first Australian legislation adopting uniform international controls for the transport of dangerous goods and he assisted in the drafting of the Australian Dangerous Goods Code, which is now in its 6th edition and applies throughout Australia, providing detailed requirements for classification, labelling, packaging and transport of dangerous goods (the Code).

When the Transport Act was enacted in 1997 as part of the uniform Commonwealth and States legislation it replaced the existing provisions then contained in the NSW Dangerous Goods Act 1975 regulating the transport of dangerous goods.

The Regulations made under the Transport Act also contain detailed requirements for the safe transport by road and rail of dangerous goods, including the adoption of the detailed provisions of the Code. In terms of those Regulations and Code separate responsibilities are imposed upon four categories of persons involved in the transport of dangerous goods, namely -

(i) the consignor, being the person who arranges to send the goods;

(ii) the prime contractor being the person who agrees to arrange the transport;

(iii) the owner of the vehicle used to transport the goods; and (iii) the driver of that vehicle.

The Code details specific packaging requirements, the primary purpose of which is the safe transport of dangerous goods to their destination. Sealing of the packaging is an essential prerequisite to prevent loss and contamination of product and to avoid risk of harm to life and property and the environment by virtue of an escape from packaging of the dangerous goods.

Dangerous goods with the greatest potential for causing damage are explosives, flammable gas and flammable liquid. In his affidavit Mr Ritchie stated that "Solvent B", being dangerous goods, "Class 3 of Packing Group II", had similar characteristics to petrol in that it is volatile, giving off large quantities of fumes at normal temperatures and is readily ignitable in the presence of any ignition source.

In the course of his oral testimony, Mr Ritchie acknowledged that that last mentioned opinion would need to be modified if in fact the proper classification of the Packing Group was Group I, as suggested in the Material Safety Data Sheet in respect of "Solvent B" that was issued by the Defendant after the commission of the offence, which classification would indicate a more dangerous level of dangerous goods than that upon which he had based his opinion.

However, this matter has not been established to anything like the criminal standard and accordingly, I accept Mr Ritchie's opinion as recorded in his affidavit without modification.

Mr Ritchie's affidavit goes on to theoretically explain the conditions required to exist for flammable liquid to catch fire in transit. His affidavit then expresses in pars 39 to 42 the following opinions: 39. The liquid and vapour from leaking drums would flow off the vehicle and if the liquid or vapour were to reach an ignition source a fire would start. I estimate the chance of ignition of this product is high. In this case, the fact that a fire did not occur was more good luck than anything else. I was surprised, reading about the quantity of product that had leaked and knowing how far the vehicle had travelled, to hear that a fire had not occurred. 40. This fire would burn back to the vehicle and quickly involve the rest of the load, as there was free liquid on the tops of the drums and on the vehicle tray around and under the drums. 41. A leak from only one or two drums would spill sufficient flammable liquid that once a fire started, the fire would quickly cause the other drums to fail because of high pressures caused by the heat from the fire. These high pressures would cause other drums to rupture, forcing their contents out of the drums and adding their contents to the fire which would quickly get more intense, and in most cases in less than ten minutes, the full load would have been burning. 42. A fire involving this quantity of flammable liquid would have major consequences. If a fire occurred anywhere there would be major damage to the road and anything near it. Bitumen roads affected by the burning of 20,000 litres of flammable liquid would need to be resealed. Property within 50 metres would be severely heat affected and unless the Fire Brigades were able to reach the scene quickly, would also catch fire.

Some of these opinions were significantly tempered when under cross-examination Mr Ritchie conceded that the focal point of risk of the leaking liquid catching fire was the area immediately surrounding the vehicle and that while the truck was in motion, the risk would not pose a great danger. The risk of fire increased with the decreasing movement of the vehicle because there would in consequence of reduced or no motion be less dilution of the vapours.

On the basis of my acceptance of Mr Ritchie's evidence in its entirety, I am satisfied beyond reasonable doubt that the leaking drums during transit - even where the transit is confined to the last three hourly leg of the trip before the vehicle arrived at the Mount White Weighing Station - created the risks of harm by fire both in terms of the nature of the risk and the degree of the risk, that were estimated by Mr Ritchie.

By way of summary factual findings, I am satisfied beyond reasonable doubt, both of the facts recorded in the Agreed Statement of Facts (Exhibit 1) and of the facts that were in dispute concerning (i) the condition of the drums and (ii) the nature and degree of risk of harm being created by the commission of the offence, but most especially in respect of the condition of the leaking drums that occurred during the final leg of the overall journey from Moama to Mount White. C. SENTENCE

It has not been suggested in the competing cases that the admitted offence does not warrant the recording of a conviction against the Defendant and the imposition of a penalty. In my judgment, the established facts of the case warrant both conviction and penalty.

The parties' respective submissions on penalty agree that the Defendant is entitled to a significant reduction in penalty on account of a number of mitigating factors presently to be mentioned.

However, where the competing submissions diverge concerns the evaluation of the objective gravity of the offence and the Defendant's subjective culpability in its commission. In this respect, the Prosecutor submits that the Court should find that admitted offence falls within the upper range of the overall spectrum of the degrees of gravity of an offence against the Transport Act, s 37(1) and that in so concluding, the Defendant's culpability should be held to be significant, especially by virtue of the lack of training given to its employees engaged as drum fillers, the obviously inadequate placarding of the transport vehicle, the utilisation of a number of drums that were clearly not fit or appropriate containers for dangerous goods on long journey from Moama to Lemon Tree, the inadequate lighting at the Refinery for the purposes of the drum fillers efficiently conducting their duties, especially their visual inspection of the drums that were filled and the absence of provision to the truck driver of proper shipping documentation and emergency procedures guide.

It was submitted by the Prosecutor that the cumulative weight of these several deficiencies in the Defendant's management of the packaging of the dangerous goods "Solvent B" which created a real risk of harm to life and property and the environment (which fortunately did not materialise) whilst the goods were in transit, justified a conclusion that the admitted breach of the significant duty of safety that is imposed by the Transport Act, s 37(1) upon the Defendant as consignor of the dangerous goods, was a serious breach warranting the imposition of a penalty towards the upper range of the provided maximum penalty of $250,000.

It was submitted that the imposition of such a penalty would fulfil the important specific and general deterrent purposes of sentencing for an offence against the Transport Act, s 37(1) in what was the first prosecution of the offence brought in this Court.

The Prosecutor acknowledged that the penalty should, however, be reduced by dint of the established mitigating factors which may be summarised as follows:

(i) the Defendant's entry of a plea of guilty at the first reasonably available opportunity;

(ii) the Defendant's co-operation with the Prosecutor at the trial in tendering the Agreed Statement of Facts;

(iv) the fact that this is the first environmental offence committed by the Defendant;

(v) the Defendant's post offence conduct instituted at the Refinery resulting in improved procedures and practices, including the training of employees in safety requirements for packing and handling dangerous goods, including the need to double check that the bungs and lids of each drum are properly in place and the installation of additional lights to the drum filling and loading area. These and other operational improvements at the Refinery significantly reduced the risk of a repetition of the facts that gave rise to the offence. That risk had since been entirely eliminated when in November 1999, the Defendant ceased to use drums for transporting dangerous goods and instead decided to use bulk tankers;

(vi) the Defendant was a Company of good character with a record of supporting local community causes; and (vii) the Defendant had agreed to the payment of $4,000 to the EPA pursuant to an Order to be made under the Transport Act, s 43 (order for recovery of costs reasonably incurred relating to the investigation of the offence) and to pay the Prosecutor's reasonable legal costs.

The competing Defence submission on penalty was that the Court would not regard the admitted offence and the Defendant's culpability in it as calling for a penalty at the upper range of the prescribed maximum penalty. Rather, the appropriate penalty was one that fell within the lower range.

It was submitted that the vindication of the beneficial purposes of the Transport Act ("….to regulate the transport of dangerous goods by road and rail in order to promote public safety and protect property and the environment": vide s 3) and the general deterrent effect of sentencing in order to educate the community in the importance of observing the demands of the particular law did not require the imposition of a heavy penalty.

The Defendant submitted that the fact that the charge had been prosecuted in this Court rather than in the Local Court and the fact that the Prosecutor had chosen not to issue a penalty notice for the offence pursuant to the Transport Act, s 38 were reasons in themselves highlighting the seriousness of the offence, and the Defendant's exposure to the consequences of that seriousness.

Having carefully considered the competing submissions, 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 would accordingly regard the offence as justifying a penalty of $75,000 representing 30 per cent of the maximum prescribed penalty of $250,000.

However, the existence of the mitigating factors that I have earlier mentioned requires a significant global reduction of that penalty. In my opinion, a 40 per cent global reduction is warranted, thereby reducing the penalty to be imposed to $45,000. D. ORDERS

For all the foregoing reasons, I make the following orders:

The Defendant is convicted of the offence as charged.

A penalty of $45,000 is imposed in respect of the conviction.

The Defendant is ordered to pay the Prosecutor the sum of $4,000 pursuant to s 43 of the Road and Rail Transport (Dangerous Goods) Act 1997.

The Defendant is ordered to pay the Prosecutor's legal costs in the sum determined in accordance with the Land and Environment Court Act 1979, s 52(2).
Exhibits (except for Exhibit 1) to be returned.

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.

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Cited By (8)