Environment Protection Authority v Patrick Distribution Pty Ltd

Environment Protection Authority v Patrick Distribution Pty Ltd - [2006] NSWLEC 123 - NSWLEC 2006 case summary — Zoe

[26]

Failure to follow procedures 28 The further actions that the Defendant could have taken to ensure that the vehicle was correctly placarded were: (a) to indicate to the driver the particular placard that should be shown on the truck, on the assumption that the dangerous goods which have been loaded at the depot were the only dangerous goods on the truck; (b) to confirm with the driver that there were no other dangerous goods on the truck; (c) to ensure that all persons involved in the loading of dangerous goods, specifically in this case Sam Huia, were properly trained with respect to the placarding of dangerous goods so that they could indicate to the driver what the appropriate placarding would be; and (d) to ensure that the loader of the vehicle complies with the Dangerous Goods Transport Guide prepared by United Transport Services, which company was bought by Patrick Distribution. That states, inter alia, on p 42 that "the loader must ensure that the load is appropriately restrained and correctly placarded". Specific deterrence 29 The Prosecutor submitted that specific deterrence should be taken into account in the assessment of penalty in this case, because the Defendant displayed a lack of recognition of any problem in the dangerous goods training undertaken by its employees. The Prosecutor relied on the oral evidence of Dean Hawthorn and David Graham that they could not account for why Mr Huia, the forklift operator, had not received the appropriate training. Although the Defendant had a training policy on paper, there was no explanation as to why this was not correctly followed through. The Prosecutor submitted that if the Defendant cannot account for why Mr Huia was not properly trained, then it is likely that a breach of the Dangerous Goods Act could recur. General deterrence 30 The Prosecutor also argued that general deterrence is an important consideration. Scott Cameron v Eurobodalla Shire Council [2006] NSWLEC 47 at [71] refers to a number of authorities which emphasise the importance of general deterrence in sentencing for environmental offences. The Prosecutor submitted that the offences under the Dangerous Goods Act are properly characterised as environmental offences having regard to s3 of that Act. General deterrence is of central importance in sentencing under the Dangerous Goods Act particularly because of its objectives relating to the safety of road users.

[28]

Defendant's Submissions Narrow Scope of Offence 34 The Defendant submitted that it pleaded guilty on a narrow basis. Its involvement was limited to compiling the goods to be loaded onto the subject vehicle and the actual loading of those goods. It did not transport the particular goods and it did not distribute them. The Defendant's failure to ensure the goods were transported in a safe manner was restricted to a failure to ensure the load was correctly placarded - it did not have a duty itself to placard. The failure to ensure the placards were correctly placed was not related to the accident, nor is there any allegation that the incorrect placarding caused hindrance or delay at the accident scene. Further, it was submitted this case is much less serious than Moama. That case involved multiple breaches of a statutory duty, the cumulative effect of which established objective seriousness and culpability. Procedures relating to dangerous goods training/specific deterrence 35 Although the Defendant accepted that the risk of incorrect placarding was foreseeable, this was not a case where the Defendant had disregarded or ignored such a risk. The affidavit of David Graham was relied on as evidence that the Defendant had systems in place to ensure that appropriate placarding was in place, in the form of written operational and training procedures which had been implemented at the Arndell Park depot at the time of the offence. The Defendant relied on the United Transport Services Dangerous Goods Transport Guide as evidence of a policy being in place which outlined the loader's responsibility to ensure the correct placarding of the truck. The Defendant also relied on the manifest, a document which requires the driver after loading to acknowledge that the vehicle signs must be displayed until the load is removed. This system of documented procedures was also supplemented by the training of employees and workers. 36 The affidavits of David Graham and Dean Hawthorn provided evidence that compulsory induction training involved dangerous goods training, and that specific training on the need for dangerous goods placarding was also in place. David Graham's affidavit also stated that the enforcement of the system occurs through a formal auditing process and by a system of checks to verify the appropriate procedures are in place and being adhered to. These checks include random checking of vehicles for correct licensing, documentation and signage. The Prosecutor has not criticised the substance of this system, or alleged that other policies or procedures should also have been in place.

[33]

Availability of alternative charges 43 The Defendant also submitted that the Court should take into account the fact that there were other charges available to the Prosecutor under the Road and Rail Transport (Dangerous Goods) Regulations (NSW) which adopt the Road Transport Reform (Dangerous Goods) Regulations 1997 (Cth). These provide in cl 7.8(1) for a maximum penalty of $15,000 for a corporation. The Defendant relied on R v Minh Zoa Liang (1995) 82 A Crim R 39. In that case, an appeal was lodged against what was alleged to have been a "manifestly excessive" sentence, based on a charge bought under Victorian legislation for fraud against a Commonwealth corporation. The Victorian legislation was based on Commonwealth legislation but had a heavier maximum penalty. It was argued on appeal that the Commonwealth legislation was more appropriate, since it was against a Commonwealth authority that the crime had taken place. In the majority, Winneke P, held at 9 that: although it is for the prosecuting authority in its absolute discretion to determine which particular charge it will lay against an accused person, it is none the less relevant and proper for the judge on sentence to take into account as a relevant sentencing principle the fact that there was another and less punitive offence which not only could have been charged but indeed was as appropriate or even more appropriate to the facts alleged against the accused. President Winneke held that the sentence was excessive, and imposed a lesser one. His Honour applied the decision of Scott v Cameron (1980) 48 FLR 274. That case involved social security fraud under the Crimes Act 1914-1975 (Cth). The maximum penalty under that legislation was imprisonment for two years. The charges could have been bought under the Social Services Act 1947 (Cth), under which the maximum penalty was a fine of $100 or imprisonment for six months. Justice White, at 279, held that the Court's discretion in sentencing is not to be fettered by the prosecutor's choice of charge: …at least in those cases where the facts are such that the prosecution could have been equally appropriately brought under one section or the other.

[34]

Finding on availability of alternative charges 44 While no authority from this Court was provided by the Defendant in support of this argument it is useful to consider Fairfield City Council v Cavasinni Constructions Pty Limited [2005] NSWLEC 187. That case involved a prosecution under s 76A(1)(b) of the Environmental Planning and Assessment Act 1979 (EP&A Act), which states that development that needs consent must not be carried out unless the development has development consent. The penalty provided is up to 10,000 penalty units ($1.1million). The Court was also referred to s 81A(2) of the EP&A Act, which provides that building must not be commenced until a construction certificate has been issued for that work. The maximum penalty is 300 penalty units ($33,000). Justice Talbot considered whether the difference in the two penalty provisions could be taken into account under s 21A(1)(c) of the Crimes (Sentencing Procedure) Act 1999. This provides: (1) In determining the appropriate sentence for an offence, the court is to take into account the following matters: … (c) any other objective or subjective factor that affects the relative seriousness of the offence. … 45 In that case the prosecutor submitted that the very wide discretion available to the Court would enable it to have regard to the provisions of s 81A and the disparity between the penalties. The defendant submitted that the consideration of a lesser penalty is a matter that may be taken into account as a "factor that affects the relative seriousness of the offence" where the same conduct might have resulted in a lesser charge but for the selection of the charge of the prosecution. Justice Talbot referred to R v O'Neill [1979] 2 NSWLR 582, which dealt with the reverse circumstance where the Court of Criminal Appeal held that on a plea to a lesser offence, sentence is not properly passed on the basis of facts supporting a more serious offence. As Talbot J notes at [17] the opposite applied on the facts before him, where the same version of the facts equally supports the lesser charge which the prosecutor had elected not to pursue and that the matter was ultimately one of fairness to the defendant. Ultimately his Honour held at [21] that because of the concession of the prosecutor that the Court may take into account the lesser penalty provided it was open to it to do so without finally deciding as a matter of law whether it was so entitled.

[35]

46 Given the wide provisions of s 21A(1)(c) of the Crimes (Sentencing Procedure) Act 1999 and the broad discretion of the sentencing judge as recognised by Spigelman CJ in relation to the "instinctive synthesis approach" to sentencing at [57] in R v Thompson (2000) 49 NSWLR 383, it is appropriate that I take into account the existence of a lesser charge and penalty as one of the relevant factors in determining the relative seriousness of the offence and the final penalty as Talbot J did in Fairfield City Council v Cavasinni Constructions Pty Ltd. This approach is further supported by the authorities relied on by the Defendant and particularly the judgment of Winneke P set out at par 43. Is this an environmental offence? 47 The Defendant referred to the cases of Cooper v Coffs Harbour City Council (1997) 97 LGERA 125 and Ryde City Council v Calleija (1998) 99 LGERA 360. The majority of the Court in Cooper held at 143 that general deterrence is important when dealing with significant breaches of planning laws. Justice Lloyd in Ryde held at 366 that one of the purposes of punishing offenders who come before this Court is "to deter offences against environmental planning laws in a general sense". However the Defendant relied on other aspects of these cases. It submitted that Lloyd J stated in Ryde at 366 that it is important to have regard to the individual facts of each case when deciding on general deterrence, and that the mitigating circumstances in this case do not warrant a heavy penalty. Further, the principles in Cooper and Calleija do not apply here because the breach of the law is not serious or multifaceted, and because it is not an environmental law case, but an occupational health and safety one. Justice Brennan at 570 in Walden v Hensler (1987) 163 CLR 558 was also relied on as authority for the principle that when imposing a penalty, "care must be taken in imposing a penalty lest the offender be made to shoulder an unfair burden of community education".

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