Inspector Stephen Campbell v James Gordon Hitchcock

Inspector Stephen Campbell v James Gordon Hitchcock - [2005] NSWIRComm 34 - NSWIRComm 1994 case summary — Zoe

[19]

8 Mr A Moses of counsel, who appeared on behalf of the defendant, made oral and written submissions, which, taken together, can be summarised in the following manner: (a) The Court should have regard to the general sentencing principles set out in Kirk ; (b) In the light of the Court's findings that: the Company's systems did not include any effective fatigue management measures; exacerbated the risks to long-haul drivers of driving when fatigued; and, resulted in the tragic death of Mr Haynes, the defendant conceded that the offences were serious breaches of the Act; (c) The penalty must include an element of general deterrence. These proceedings were a test case in relation to the management of fatigue in the transport industry and the Court's benchmark decision on liability will be a lesson to others in the industry, perhaps yielding an alternative attitude to fatigue and safety. The defendant acknowledged that if the Court were "to be merciful and not impose a sentence which reflected the seriousness of the crime, it would be said it failed in its duty to see that the sentence is to operate as a powerful factor to prevent the commission of such an offence by not only the defendant but others in the industry."; (d) However, the Court must also give careful consideration to the defendant's previous character and conduct and to the effects of these proceedings on him. Although these factors are not as important as the primary object of general and special deterrence, they are nonetheless relevant; (e) The Court should take the following subjective factors into consideration: (i) The defendant's co-operation with the WorkCover Authority of New South Wales ("WorkCover"), the New South Wales Police Service ("the police") and the Roads and Traffic Authority of New South Wales ("the RTA"); (ii) The defendant's expression (through his counsel) of contrition for the tragic death of Mr Haynes; (iii) The defendant's good citizenship and extensive community involvement in the Shoalhaven Region, including contributions to charity and to the transport industry, attested to by numerous former employees, business associates, personal friends and public officials. These references, and the broad range of referees, show that the defendant has been forthright, honest, reliable, hard-working and a responsible member of his local community; (iv) The defendant's (ultimately successful) application for registration under the RTA's Transitional Fatigue Management Scheme, on foot at the time of the accident, showed a commitment by the defendant and the Company to the objects of the Act; and (v) Without wishing to understate the loss that Mr Haynes's partner and family have suffered, the accident, the proceedings and its aftermath have had a serious impact on the defendant. His health (particularly relating to diabetes and blood pressure) had suffered immensely; the proceedings had placed a great strain on him and his family; and the effects of the accident and ensuing publicity on his business had been devastating, affecting both business volume and his ability to attract new and retain old employees. (f) It could not be said that the risk of Mr Hitchcock re-offending was non-existent and, accordingly, specific deterrence could be taken into account. However, the risk was low, given the reduction of the Company's business to three short-haul drivers and the defendant's recent acceptance of an offer to buy the short-haul section of the business; (g) While a plea of guilty can be taken into account in mitigation, the defendant should not be penalised for having insisted on his right to a trial; (h) There was no submission under the Fines Act 1996 that there was any issue as to the defendant's capacity to pay the penalty to be imposed by the Court. The financial evidence was only relevant to the extent that adverse changes to the defendant's personal and business circumstances counted as mitigating factors: see Kirk at [52]; (i) There could be no doubt that the two offences contained very substantial common elements and the principle of totality should apply to avoid the defendant being penalised more than once; and (j) To the extent that parts of Mr Hitchcock's affidavit could be regarded as traversing the Court's extensive findings in the judgment on liability, that evidence should not be taken into account.

[20]

9 The findings of fact in the judgment on liability do much to illustrate the objective seriousness of the offences. The following findings (though not exhaustive) are particularly relevant: [42] It is clear from Associate Professor Williamson's expert evidence, and I have no hesitation in finding beyond reasonable doubt, that driving whilst fatigued is a risk to health and safety. In particular, I find that: (a) Long hours of working, especially at night, lead to fatigue; (b) Six hours of sleep during the core period of midnight to 6am (or an equivalent restorative sleep during day time, which may take longer due to the deficiencies of day time sleep) is the bare minimum to manage fatigue appropriately; (c) The high levels of attention required for driving will also contribute to fatigue; (d) Chronic fatigue can develop over a series of long work days in the absence of adequate rest; (e) Sleep is the only way to effectively alleviate fatigue; (f) The most beneficial, restorative sleep is taken between midnight and 6am. Longer periods of day-time sleep are necessary to reduce a build-up of fatigue; (g) Driving when fatigued is extremely dangerous because the skills necessary for driving - paying attention moment by moment - are significantly impaired by fatigue; (h) The nature of fatigue makes this situation even more dangerous: the more tired a driver becomes, the less able they are to respond safely to that fatigue by electing to take appropriate rest-breaks, or to stop; and (i) Fatigued drivers have a higher risk of crashing. [132] By this time [10.55am on the day of his death], Mr Haynes was in the following ominous position: in the 47 hours and 10 minutes since 7.28am in Brisbane on Monday he had had a maximum continuous break of 3 hours and 5 minutes. If any contrast be needed to emphasise the invidiousness of his position (in terms of his health and well-being), one need only consider the RTA regulations which required two continuous six-hour breaks over the same period and Associate Professor Williamson's evidence that two such continuous sleeps over that time period constitute the bare minimum for fatigue management. It is patent that his sleep during the two preceding core periods was inadequate: a maximum of 3 hours 5 minutes during one of them - Monday night. Again, it is certain that at this point, Mr Haynes was at risk of driving when fatigued and should not, as a matter of safety, have been driving. [165] ... I have found (at paragraphs [91] and [132]) that it is indisputable that there was such a risk (the risk of driving when fatigued) on several occasions including at the time of the accident. Moreover, I have found to the criminal standard that Mr Haynes was exposed to danger, not merely a risk: he was in fact fatigued at the time of the accident (at paragraph [159]), and this fatigue could not have been alleviated by four hours of rest that afternoon, even if they were taken without interruption.

[21]

[211] Despite: (a) the obvious importance of protecting long distance drivers against fatigue; (b) the evident purpose of log-books; (c) the defendant's admission that the log-books were the only record of the hours drivers spent driving; and (d) the fact that the regulations not only carried the force of law but also effectively constituted Company policy the evidence established that, although the drivers provided these pages to the Company, they were never reviewed or discussed. It is open, on the evidence, to conclude that they were not even kept, but it is not necessary for me to make that finding in order to determine the charges. [260] In summary, I have made the following findings beyond reasonable doubt as to the Company's work practices: that there was no Company policy on driving hours or rest-breaks distinct from the log-book regime; that such policy as there was ("to abide by the log-book") may not have been communicated to the drivers (and if it was, it was in a perfunctory manner at the commencement of employment); that the "policy" was not enforced or supervised; that the Company did not collect any oral information pertaining to driving hours or rest-breaks and did not conduct any review of the relevant written information (the duplicate log-book pages); and that "compliance" with the "policy" such as it was on rest-breaks and limited driving hours was left totally to the drivers in a system which provided incentives (through pay) to increase driving hours. I have further found, beyond reasonable doubt, that the Company did not take into account the effects of fatigue and sleep deprivation when preparing rosters. Finally, I have found that the Company pressured its drivers to meet delivery deadlines resulting in breaches of the log-book regime - either due to specific time slots for particular depots, as mentioned by Mr McLennan, or to Company imposed deadlines to be there early "in the morning" - and that they risked their jobs or income if they failed to comply. This pressure may have been to meet client expectations, or to manage excessive workloads, or a combination of the two; the result was the same. Needless to say, even the most superficial fatigue management system would have picked up the falsified log-books handed in by the drivers, which could not have tallied with kilometres recorded on their daily worksheets or with the deliveries they were directed to make. Clearly, the failures alleged in the particulars relating to rest-stops, driving hours, driving rosters and the Company's system of work have been made out to the requisite criminal standard of proof. [262] In order to establish liability on these grounds, it remains to consider causation (subject to any defence). I am satisfied beyond reasonable doubt that the Company's failures to ensure that its drivers took sufficient rest-stops; to record and audit driving hours properly; to provide a safe system of work to minimise the risk of fatigue and sleep deprivation; and to take fatigue into account when preparing driving rosters caused the risk to Mr Haynes's health and safety of driving whilst fatigued. The defendant only raised causation in relation to one of these particulars - rosters - in his written submissions, but in my view the causal nexus is obvious. Had the Company taken into account the effects of fatigue and sleep deprivation (armed with accurate information of driving hours and rest-breaks) in accordance with its statutory obligations it would not have allocated work to fatigued drivers. Indeed, this would have been the most effective means of minimising the risk of its employed drivers driving whilst fatigued: withholding work until appropriate rest-breaks had been taken. As Associate Professor Williamson so graphically stated in cross-examination, "You're not going to crash if you're not on the road". [270] I am satisfied beyond reasonable doubt that the Company's failures to provide information, instruction, training and supervision of its employees (as discussed above) caused the risk to Mr Haynes's health and safety of driving when fatigued. The evidence of Associate Professor Williamson made it clear that drivers suffering from fatigue could not be relied upon to make decision necessary for their safety: it follows that supervision was essential. It was also apparent from her evidence of the manner in which fatigue develops (reaching dangerous levels after just one night of no sleep or interrupted sleep during the core period) and of the effects of fatigue on driving, that training, information and instruction were necessary to impress upon drivers the seriousness of the risk, the importance of taking appropriate rest-breaks to avoid it, and how best to do so. Matters relating to circadian rhythms; optimum times for falling asleep; the varying quality of sleep depending upon when it is taken; and the consequences when driving in the absence of sleep for 18 hours tantamount to driving with a blood-alcohol level of 0.05 are not matters of common knowledge and yet are critical to long distance truck drivers. It may be said to be even more critical for the Company's drivers, who commonly drove a 15 hour route (from Brisbane to Nowra). [291] The facts of this case do not permit a reasonable doubt as to the causal connection between the risk to Mr Haynes of driving when fatigued and the Company's proven failures. The Company's failures to ensure that its drivers (including Mr Haynes) took sufficient rest-stops; to record and audit driving hours properly; to provide a safe system of work; and to take fatigue into account when preparing driving rosters caused the risk to Mr Haynes's health and safety of driving when fatigued in the manner discussed by the Court in WorkCover Authority (NSW) (Inspector Glass) v Kellogg (Aust.) Pty Ltd (No 1) (1999) 101 IR 239 at 253. Implementation of any one of these measures would have had some considerable effect in reducing the risk, and the absence of all of them, in the context of incentives and pressure to drive without appropriate rest-breaks, guaranteed that drivers, including Mr Haynes, worked under the shadow of this risk. Inter-state truck drivers, driving long distances (frequently at night, with the consequences for fatigue described by Associate-Professor Williamson), were necessarily exposed to the risk of becoming fatigued (and therefore the risk of driving when fatigued) in the absence of appropriate fatigue management systems.

[23]

11 Mr Hitchcock's affidavit contained the following relevant evidence, which was not disputed by the prosecutor, and which I accept: (a) Mr Hitchcock established his own fuel business in 1971 and expanded into haulage in 1972. At its peak, the Company employed approximately 90 people, including 30 in the haulage part of the business. At the time of the accident, the Company's employees and truck fleet each numbered about 30; (b) The accident caused him considerable shock and sadness, and affected everyone at the workplace. This evidence was enlarged by Mr Moses from the bar table (without objection and with the Court's acceptance) to the effect that Mr Hitchcock expressed contrition for Mr Haynes's death; acknowledged that the impact had been nothing short of devastating for Mr Haynes's partner of 19 years, Ms Campbell; and expressed his condolences to her; (c) Mr Hitchcock had wanted to attend the scene of the accident, but had been advised by the police not to, and the Company had offered assistance to Ms Campbell, which was declined; (d) At the time of the accident, Mr Hitchcock co-operated with both WorkCover and the police in their investigations; (e) The publicity during and after the trial adversely affected the Company's volume of business and its ability to attract and retain employees, to such an extent that long distance operations (a substantial part of the business) ceased in late November 2004. Mr Hitchcock sold most of the vehicles and all excess equipment; reduced operations to three drivers performing short-haul work; and is negotiating the sale of that remaining short-haul business. The demise of the haulage business may finish Mr Hitchcock's related mechanical repair business due to a 70% reduction in turnover. (f) The accident and the proceedings have had a severe financial, mental and physical impact on Mr Hitchcock and his family. His health has suffered immensely, particularly in relation to diabetes and blood pressure; (g) Neither he, nor the Company, had had any previous convictions or charges under the Act or any other law (apart from minor traffic offences).

[58]

44 The principles relating to the imposition of the maximum penalty were discussed in WorkCover v McDonald's at [141]: 141 Furthermore, a number of principles may be identified in relation to the maximum penalty for the offence: 1. The maximum penalty in a general way indicates the seriousness which Parliament, representing the people, has viewed the offence and represents the starting point for the assessment of penalty as representing the worst case in the class of the defined offence: Director of Public Prosecutions (Cth) v Said Khodor El Karhani (1990) 21 NSWLR 370 at 380; 2. The maximum penalty may be appropriate where the level of culpability is so extreme that the community interest in retribution and punishment can only be met by such a punishment. The maximum penalty for any offence is a sentencing option reserved for cases which can be properly characterised as falling within the worst category of cases for which that penalty is prescribed: R v Vusumuzi Twala (unreported, Court of Criminal Appeal, Matter No. 60187 of 1993, 4 November 1994 at 2); R v Dodd (1991) 57 A Crim R 347 at 354. Such a case must involve an absence of any facts mitigating the objective seriousness of the crime (as distinct from any subjective features mitigating the penalty to be imposed): Kalajzich (1997) 94 A Crim R 41 at 51; Fernando v Fernando (1997) 95 A Crim R 533 at 536. It was pointed out by the Full Court of the Industrial Court of New South Wales in Independent Cargo and Wool Services at 4: The maximum penalty is designed to furnish out one end of the scale. Thus whilst penalties should not be compared in terms of some mathematical ratio "it must be true that in any given case the area available for consideration must be measured between no imposition of a penalty at one end and the maximum at the other. (at 4) 3. However, it does not follow that a lesser penalty than the maximum must be imposed if it is possible to envisage a worst case (see earlier extract from Camilleri's Stock Feeds ; see also Saffron (No 3) (1989) A Crim R 123 at 126); Twala at 2. 4. A significant increase in the maximum penalty represents the level of community concern about conduct proscribed under the Act which should be reflected in the sentences which trial courts impose: see R v Jurisic (1998) 101 A Crim R 259 at 274; R v Slattery (1996) 90 ACrimR 519 at 524; Ferguson v Nelmac Pty Ltd . See also R v Way (2004) 60 NSWLR 168 at [51].

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