Inspector Stephen Campbell v James Gordon Hitchcock

Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED: Fines Act 1996 Occupational Health and Safety Act 1983

Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 Department of Mineral Resources of NSW (Chief Inspector Bruce Robert McKensey v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority (NSW) (Inspector Ch'ng) (1999) 90 IR 432 Inspector Barry Childs v Kirk Group Holdings Pty Limited & Anor [2005] NSWIRComm 1 Inspector Campbell v James Gordon Hitchcock [2004] NSWIRComm 87 Inspector Gregory Maddaford v Graham Gerard Coleman & Anor [2004] NSWIRComm 317 Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 Maddaford v CSR Limited and Mulgoa Quarries Pty Ltd [2004] NSWIRComm 337 Manpac Industries Pty Ltd (formerly trading as Pacific Concrete & Quarries Pty Ltd) v WorkCover Authority of New South Wales (Inspector Glass) (2001) 106 IR 435 Morrison v Powercoal Pty Ltd (2003) 130 IR 364 O'Sullivan v The Crown in the Right of the State of New South Wales (Department of Education and Training) (2003) 128 IR 158 CASES CITED: R v Vusumuzi Twala (unreported, Court of Criminal Appeal, 4 November 1994) R v Way (2004) 60 NSWLR 168 Riley v Australian Grader Hire Pty Limited (2001) 103 IR 143 Warman International Ltd v WorkCover Authority of NSW (1998) 80 IR 326 WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited and Anor (2000) 95 IR 383 WorkCover Authority of New South Wales (Inspector Farrell) v Schrader (2002) 112 IR 284 WorkCover Authority of New South Wales (Inspector Larkin) v Rice Growers Co-operative Limited (2002) 120 IR 123 WorkCover Authority of NSW (Inspector Riley) v Broken Hill Proprietary Company Limited (1998) 83 IR 427 WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v Maine Lighting Pty Limited (1995) 100 IR 248

PROSECUTOR Mr P Skinner of Counsel SOLICITOR Mr A O'Dea Carroll & O'Dea LEGAL REPRESENTATIVES: DEFENDANT Mr A Moses of Counsel SOLICITOR Mr J Catanzariti Clayton Utz

JUDGMENT: 28 INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

INSPECTOR STEPHEN CAMPBELL V JAMES GORDON HITCHCOCK

Prosecution under s16(1) and s50(1) of the Occupational Health and Safety Act 1983.

INSPECTOR STEPHEN CAMPBELL V JAMES GORDON HITCHCOCK

Prosecution under s15(1) and s50(1) of the Occupational Health and Safety Act 1983.

1 By the ordinary principles of sentencing, this case calls for a severe penalty. Not only did the Company fail to provide any effective measures to eliminate (or even to reduce) the risk of fatigue for its long-haul truck drivers, its operations exacerbated those risks - sometimes to the point of actual danger - by requiring drivers to meet delivery deadlines (no doubt in response to customer demands), ultimately leading to a man's death. The risks of fatigue were well-known in the trucking industry and capable of remedy by simple measures some of which were required by regulations enacted for this very purpose. The seriousness of these offences, mitigated to an extent (but not substantially) by subjective factors, demands a sentence which will deter companies from operating under systems which, by failing to manage the risk of fatigue, endanger both their employees and the public of New South Wales.

3 The facts are detailed in the judgment on liability (Inspector Campbell v James Gordon Hitchcock [2004] NSWIRComm 87). In short, Mr Hitchcock and his wife, Mrs Ida Hitchcock, were the sole directors of a haulage company - Sayogi Pty Ltd trading as "Jim Hitchcock Haulage" ("the Company") - and had been since its inception in 1984. At about midnight on 1 September 1999, one of the Company's drivers, Mr Darri Haynes, died when his articulated lorry crashed into another articulated lorry on the Pacific Highway near Tyndale.

4 Rather than proceeding against the Company (which was deregistered some eight months after the accident), the prosecutor charged Mr Hitchcock pursuant to s50 of the Occupational Health and Safety Act 1983 ("the Act") on the foundation that the Company had contravened ss15 and 16. The two charges (and their particulars) are set out in the judgment in Inspector Campbell v James Gordon Hitchcock. In brief, the prosecutor alleged that the Company failed to protect Mr Haynes and the other driver involved in the accident from the risks of driving when fatigued by failing to: ensure that its drivers took sufficient rest stops; take fatigue into account when preparing rosters; record and audit driving hours; warn drivers of the risks of taking drugs when driving; warn drivers of the risks of driving when fatigued; provide information, instruction, training and supervision; or provide a safe system of work.

5 Mr Hitchcock pleaded not guilty and defended the case vigorously. On 21 October 2004 I found both offences proven, although the prosecutor did not sustain either charge in relation to the alleged failures to warn employees of the hazards of fatigue and of taking drugs to counter fatigue in the course of long haul truck driving.

6 A significant part of the defendant's case was to assert that a risk of fatigue was not enough: the prosecution had failed if it could not establish that Mr Haynes was actually fatigued at the time of the accident. Not only was this contention wrong in law and principle (as discussed in Inspector Campbell v James Gordon Hitchcock at [278] - [284]); it was factually unsubstantiated. I found beyond reasonable doubt that Mr Haynes was fatigued at the time of the accident (and on at least one other occasion that week); that this significantly impaired both his ability to drive safely and his ability to respond safely to that fatigue by electing to take appropriate rest-breaks, or to stop; and that his fatigue was caused by the Company's overwhelming failure to provide a safe system of work.

7 Mr P Skinner of counsel, who appeared on behalf of the prosecutor, made the following oral submissions: (a) The objective seriousness of both offences was very high; (b) Notwithstanding the undoubted evidence of Mr Hitchcock's civic standing, and his evidence pertaining to assistance and co-operation (which the prosecutor accepted), there was little evidence (either in the trial or in the sentencing hearing) to convince the Court to mitigate the penalty to be imposed; (c) In particular, in the proceedings at first instance, Mr Jones (a driver employed by the Company for 15 months who started working one month before the accident) gave uncontroverted evidence that, in the 14 months following Mr Haynes's death, there was no change to any of the Company's practices or procedures. The fact that, despite this, and despite the Court's wide-ranging findings on liability, Mr Hitchcock could now attest that he "always tried to run a professional, law abiding business" indicates little acceptance or recognition of the Company's culpability and must be assessed when considering remorse, contrition and special deterrence; (d) The prosecutor agreed that adverse changes to the personal, business and professional circumstances of the defendant arising from the incident were also mitigating factors: see Inspector Barry Childs v Kirk Group Holdings Pty Limited & Anor [2005] NSWIRComm 1 at [52]. However, there was no indication that Mr Hitchcock would not be able to pay any appropriate fine imposed by the Court; (e) General deterrence should be a primary consideration in this case and special deterrence was also relevant, despite the defendant's evidence about his reduced business. Mr Hitchcock still employed three drivers for short-haul work, and there was no evidence to indicate he would not be involved in the long-haul business again.

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.

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.

[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.

10 Mr Hitchcock swore an affidavit in these sentencing proceedings attesting to various subjective factors and annexing numerous character references. Following the undertaking given by Mr Moses that the limited evidence which traversed the Court's findings should be disregarded, the affidavit was tendered without cross-examination.

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).

12 Mr Hitchcock's affidavit contained extensive evidence of his good citizenship and extensive community involvement in the Shoalhaven Region, including contributions to charity and to the transport industry, vouched by numerous former employees, business associates, personal friends and public officials. I accept Mr Moses's submission that these references, and the broad range of referees, show that Mr Hitchcock is highly regarded by the local community and has been a forthright, reliable, hard-working and responsible member of it.

13 It was clear from the references to his haulage business in the more than 50 pages of character testimonials that Mr Hitchcock's attention was focussed on customer service, and the cleanliness and mechanical standard of the trucks. These statements echoed the drivers' evidence at the trial of the importance Mr Hitchcock placed upon keeping the trucks in "showroom condition". There is no doubt that the trucks, as expensive pieces of equipment, were well maintained. This is in contrast to my findings that the Company's systems of work did not include any effective fatigue management measures for the protection of its drivers.

14 Finally, Mr Hitchcock gave evidence that at the time of the accident the Company was seeking accreditation for the RTA's Transitional Fatigue Management scheme. The scheme permitted employed drivers to drive for 14 hours (instead of 12) in any 24 hour period, provided that their employer had been certified under the scheme. Certification involved (in essence) arranging an approved fatigue management course for drivers; maintenance of accurate records demonstrating compliance with the scheme; and the regular review of driving records and rostering. The Company was registered under the scheme six weeks after the accident, on 15 October 1999.

15 According to Mr Hitchcock's affidavit, since the accident he "continued to reinforce to drivers the importance of managing fatigue" and provided all new drivers with various materials, including a "Jim Hitchcock Haulage Professional Drivers Manual"; a "Staying Alert at the Wheel Book"; and an "RTA Truck Driver's Guide to Managing Fatigue on a Long Haul". With the exception of the first document, none of these documents was produced to the Court. A version of the first document dated 1 February 2001 (post-dating the accident by more than a year) was tendered in the trial. However, neither Counsel referred to or relied upon this document.

16 The only other relevant evidence was Mr Jones's evidence from the trial (referred to by Mr Skinner in submissions) to the effect that following Mr Haynes's death, there was no change to any of the Company's practices or procedures. This evidence was not challenged under cross-examination at the trial, nor contradicted by any evidence adduced on behalf of the defendant (at first instance or in these sentencing proceedings). On that basis, and on the basis of my finding that Mr Jones was a witness of credit (at [192] of Inspector Campbell v James Gordon Hitchcock), I find that there were in fact no effective changes to the Company's practices or procedures. Nothing in Mr Hitchcock's affidavit persuades me otherwise. His assertion that he "continued to reinforce to drivers the importance of managing fatigue" is inconsistent with my findings at first instance and I reject it (both in terms of my earlier findings and the concession given by Mr Moses concerning Mr Hitchcock's affidavit evidence).

17 As for Mr Hitchcock's evidence that, following the accident, he provided new drivers with some relevant manuals (there was no evidence that even this inadequate step was taken for current drivers), I simply note my comments at [199] of Inspector Campbell v James Gordon Hitchcock that a system based on paper alone is clearly inadequate, and that the employer must ensure that procedures and instructions are actively and positively complied with by employees. There was no evidence that this was done.

18 I endorse without repeating the discussion of legal principles in Kirk, particularly at [31]. See also Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464; Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610; Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority (NSW) (Inspector Ch'ng) (1999) 90 IR 432; Morrison v Powercoal Pty Ltd (2003) 130 IR 364 at [32] - [33] and Manpac Industries Pty Ltd (formerly trading as Pacific Concrete & Quarries Pty Ltd) v WorkCover Authority of New South Wales (Inspector Glass) (2001) 106 IR 435 at [69] - [70]. Objective Seriousness

19 Mr Hitchcock has committed two offences of great seriousness, each of which attracts a maximum penalty of $55,000 (given that he has no prior convictions under the Act). Not only was Mr Haynes exposed to the risk of driving when fatigued (as mentioned earlier, on at least two occasions), he was exposed to the present danger of being actually fatigued whilst driving. The ensuing analysis of the seriousness of the offences is based on the failures of the Company's systems to provide any effective measures to eliminate (or even to reduce) the risk of fatigue for its long-haul truck drivers. But the Company's contribution to the risks faced by its drivers (and anyone physically proximate to them) was not limited to failures or to an ineffective or inadequate system: I found beyond reasonable doubt that, on occasion, the Company exacerbated the risk by actively requiring its drivers to forgo compulsory rest-breaks. This finding necessarily increases the gravity of offences.

20 The existence and implementation of settled safety procedures and instructions (indicative of an employer that takes its health and safety obligations seriously) is a factor that mitigates the objective seriousness of the offence: see Warman International Ltd v WorkCover Authority of NSW (1998) 80 IR 326; WorkCover Authority of NSW (Inspector Riley) v Broken Hill Proprietary Company Limited (1998) 83 IR 427; Department of Mineral Resources of NSW (Chief Inspector Bruce Robert McKensey v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8; WorkCover Authority of New South Wales (Inspector Larkin) v Rice Growers Co-operative Limited (2002) 120 IR 123 and WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited and Anor (2000) 95 IR 383. However, where the system has not been adequate to meet the pro-active statutory requirements referred to in Riley v Australian Grader Hire Pty Limited (2001) 103 IR 143 at [15] and WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v Maine Lighting Pty Limited (1995) 100 IR 248 at 257, the extent to which they will ameliorate objective seriousness will be limited correspondingly.

21 In this case, the Company's practice of perfunctorily telling drivers to abide by the log-book was so rudimentary that, to the extent that it could be described as a system, it would have to be of the lowest order, leading to minimal mitigation in normal circumstances. When combined with an operating system which actually increased the risks to drivers, as here, the mere existence of such a "safety system" cannot diminish the objective seriousness of the offences at all, even to a minimal degree.

22 Secondly, the existence of a reasonably foreseeable risk to health or safety will result in the offence being more serious in nature: Capral Aluminium Ltd v WorkCover Authority of New South Wales at [82]. In this case, the risk of long-haul truck drivers driving when fatigued was not merely reasonably foreseeable: it was well-known, and had been the subject of public and governmental concern (and regulation) since the 1930s. This necessarily makes the offence under the Act more serious: see the Full Bench decision of Inspector Gregory Maddaford v Graham Gerard Coleman & Anor [2004] NSWIRComm 317 at [88] - [90].

23 Further, at the time of the accident (and for the preceding 27 years) Mr Hitchcock operated a sizeable haulage business in an industry governed by regulatory framework specifically devised to minimise or reduce those risks - latterly, the RTA's log-book regime and the associated Safe-T-Cam system. Moreover, as he stated in his affidavit, Mr Hitchcock was actively involved with industry safety and regulatory bodies. This is supported by the trial evidence of Mr Montgomery, Vehicle Inspector for the RTA, that he had attended an Open Day organised and hosted by the Company at its Bomaderry premises in 1998 to promote the trucking industry in general, and safety in particular. Both the RTA and the police were invited to participate and display their role in the industry. It is inconceivable that Mr Hitchcock was not well acquainted with the risk. In any event, he should have been aware.

24 Thirdly, this seriousness is compounded by the availability of simple and obvious remedial measures to avoid or minimise the risk: see Lawrenson Diecasting Pty Limited v WorkCover Authority at [476] and Department of Mineral Resources (NSW) v Kembla Coal and Coke Pty Ltd at 27. The framework for a fatigue management system had been compulsorily established by law and the Company's drivers were complying by providing the Company with duplicate pages of their log-books. A simple system of supervision: enforcing compliance with the regulations; regularly and frequently monitoring the duplicate pages and cross-checking them against job allocations and average travel times; and, withholding work until compulsory breaks had been taken; would have gone a considerable way to reducing the risks faced by the Company's drivers. Yet none of these steps were taken. They would, in fact, have been inimical to the Company's actual system of work in which the drivers were pressured (through fear of losing their jobs or income) to meet delivery deadlines in breach of the log-book regime.

25 Fourthly, as discussed by the Full Bench in Maddaford v CSR Limited and Mulgoa Quarries Pty Ltd [2004] NSWIRComm 337 at [17] - [18], although the damage or injury does not, of itself, dictate the seriousness of the offence or the penalty, a breach where there was every prospect of serious consequences may be assessed on a different basis to a breach unlikely to have such consequences. In such a case, the occurrence of death or serious injury may manifest the degree of seriousness of the relevant risk: see also Capral Aluminium at [94] and [95]; WorkCover v McDonald's at 428; and Morrison v Powercoal Pty Ltd at [32].

26 In this case, Associate Professor Williamson's evidence established that there was every prospect that the Company's breaches would result in death or serious injury: put bluntly, fatigued drivers have a higher risk of crashing. Crashes involving articulated lorries travelling at highway speeds are likely to have serious, if not fatal, consequences. For these reasons, I am satisfied that Mr Haynes's death did manifest the degree of seriousness of the relevant risk.

27 There was no evidence pertaining to the circumstances of the accident itself which would mitigate the seriousness described above. Moreover, Mr Hitchcock must bear full personal responsibility for the Company's breaches: unlike a generic manager in a large organisation, Mr Hitchcock was effectively the mind and actor of the Company, building it up from scratch and controlling its actions and operations. Indeed, the Company was styled after him, trading as "Jim Hitchcock Haulage".

28 As counsel for both parties agreed, there is one other significant factor going to the question of the objective seriousness which will influence the assessment of penalty in this matter: general deterrence. The principles relating to general deterrence set out in WorkCover Authority of New South Wales (Inspector Farrell) v Schrader (2002) 112 IR 284 at [69] - [70], referred to recently with approval by the Full Bench in Maddaford v Coleman at [80], emphasise the more severe punishment which attends general deterrence, should it feature in sentencing: [80] The Court in WorkCover Authority v Schrader held at [69]-[70]:

The purpose of the Act is well known and often referred to in judgments of this Court. In my view, it is important, when considering notions of general deterrence, that the Court be cognisant of the fact that the Act is for the benefit of the public generally and particularly employees at work. The goal is the prevention, deterrence and punishment of breaches of health and safety requirements. The notion of general deterrence is well understood. However, in my view, and in accordance with what was stated by the Full Court in Capral Aluminium (at [72] - [74]), in cases such as this, it should be reiterated that "one of the main purposes of punishment, ... is to protect the public from the commission of such crimes by making it clear to the offender and to other persons with similar impulses that, if they yield to them, they will meet with severe punishment" (emphasis added): R v Rushby [1977] 1 NSWLR 594 at 597 per Street CJ citing R. v Radich [1954] NZLR 86 at 87 (adopted by this Court in Capral Aluminium at [72]).

Further, I would note that it has been described as "the fundamental duty of this Court" to ensure that any penalty imposed is severe enough to "compel attention to occupational health and safety issues so that persons are not exposed to risks to their health and safety at the workplace": Fisher v Samaras Industries Pty Limited (1996) 82 IR 384 at 388 adopted in Capral Aluminium (at [74]). See also the Full Bench decisions in Inspector Ian Lancaster v Burnshaw Constructions Pty Ltd [2002] NSWIRComm 319.

29 In this case, where such a large section of the public (anyone on or in the vicinity of the highway) may be exposed to the risk arising from fatigued truck drivers; where the risk is one of such long standing in such a prevalent, expanding industry (on the evidence in this matter, the risk persists, seemingly despite all regulatory efforts to contain it); and where breaches of the Act have every prospect of serious consequences for both the drivers and the public, I agree with Mr Skinner that general deterrence should be a primary consideration. Mr Moses also recognised its importance, acknowledging (in a submission reminiscent of Schrader) that the Court has a duty to impose a sufficiently severe sentence to act as a deterrent to others in the long-haul transport industry to prevent the commission of such offences.

30 The evidence demonstrated that fatigue is a significant risk to the safety of long-haul truck drivers and to anyone on or in the vicinity of the highway. The evidence also demonstrated that the regulatory system established to avoid the risk of fatigued truck drivers was not wholly effective: the drivers who gave evidence at the trial were unanimous in their opinion that all drivers knew various ways of "beating the system", and that this was simply a necessary part of their job. Indeed, Mr Richard O'Neill, Safe-T-Cam Co-ordinator for the RTA, agreed under cross-examination that truck drivers use various techniques to avoid Safe-T-Cam sites. The following paragraph from one of the character testimonials (written by a long-haul driver of 9 years' experience) annexed to Mr Hitchcock's affidavit is illustrative of the point: In an industry where there are poorly maintained trucks, impossible deadlines, and rampant disregard for the law , it is a pity that Jim Hitchcock will no longer be involved in the industry. [Emphasis added].

31 In the case of the Company's operations, it could be said that the regulatory system was almost wholly ineffective to avoid the risk of fatigued drivers: the Company's entire system relied upon abuse of the log-book regime. Furthermore, the evidence suggested that work practices in breach of the regulatory system were not limited to the Company.

32 Moreover, a large number of long-distance truck drivers die each year in road accidents in New South Wales - during these very proceedings, one of the witnesses (a long-haul truck driver) died in a highway accident - and a proportion of these accidents is fatigue-related.

33 In conclusion, it is incontrovertible that driver fatigue in the long-haul truck industry is a danger to drivers and to the public of such proportions that a severe penalty must be imposed to deter others in the industry from perpetuating breaches which appear to be widespread. It is also clear, following the evidence in this case (particularly that of Associate Professor Williamson relating to the inability of fatigued drivers to respond effectively and safely to their own fatigue) that the regulatory systems must be reviewed if they are to be more effective.

34 Finally, both counsel agreed that specific deterrence was relevant to my determination of penalty. Mr Moses conceded that this was not a case where the risk of re-offending was non-existent (although he submitted it was low). Mr Skinner noted that Mr Hitchcock still operated in the haulage business, and there was no evidence to indicate that he would not operate in the long-haul business - his domain for 32 years - again. I do not consider that the risk of re-offending is so low as to rule out specific deterrence: see generally Capral Aluminium at [76] - [77]. Subjective Factors

35 It is clear from counsels' submissions that no discount is available to Mr Hitchcock by virtue of a guilty plea (although he may not be penalised for having pleaded not guilty) and that there is no issue as to Mr Hitchcock's capacity to pay the penalty to be imposed by the Court.

36 I agree with counsel for both parties that there are some subjective factors in this matter which will mitigate - to an extent - the penalties to be imposed. Mr Hitchcock has no prior convictions under the Act. There was no argument that Mr Hitchcock co-operated with WorkCover and with the police; offered assistance to Ms Campbell; and was a respected, civic-minded, and highly-regarded member of his local community in the Shoalhaven region. These factors should be taken into account in Mr Hitchcock's favour. However, I reiterate the prevailing importance of objective factors. In this respect, I also note from the numerous character testimonials that Mr Hitchcock operated for decades in a tough industry, with tight margins and was hard-nosed enough to succeed: something had to give to maintain customer satisfaction, trucks cleaned to "showroom" standard and serviced to mechanical perfection. It appears that that something was fatigue management and consequent driver safety.

37 The prosecutor agreed that adverse changes to the personal, business and professional circumstances arising from the aftermath of the incident were also mitigating factors: see Kirk at [52]. I am satisfied, on the evidence, that Mr Hitchcock has suffered significant adversity of this nature and the prosecutor made no suggestion to the contrary. In addition to the matters mentioned above, it will therefore be a factor in my determination of the appropriate penalty.

38 I note that these subjective factors (lack of prior convictions; standing as a person of good character; showing remorse by offering assistance and assistance to law enforcement authorities) are listed in s21A(3)(e), (f), (i) and (m) of the Crimes (Sentencing Procedure) Act 1999 as mitigating factors which may be taken into account in determining the appropriate sentence for an offence.

39 I accept Mr Moses's submissions from the bar table (which were not objected to by the prosecutor) to the effect that Mr Hitchcock was contrite for Mr Haynes's tragic death. However, I agree with the prosecutor that such an expression of contrition must be assessed in the light of Mr Hitchcock's conduct following the accident, which does not entirely sit comfortably with significant feelings of contrition or remorse. In particular, I repeat my earlier finding that there were no effective changes to the Company's practices or procedures, despite the fatal accident and despite the availability of simple and obvious remedial measures.

40 I also accept Mr Skinner's submission that the tenor of Mr Hitchcock's affidavit (replete with phrases such as "I always tried to run a professional law-abiding business"; "... it was my practice to inform drivers to stop and rest"; and "I have continued to reinforce to drivers the importance of managing fatigue"); suggests an impediment to full recognition of culpability. It is difficult, in these circumstances, to find any acknowledgment by Mr Hitchcock of having committed a wrong (without which there can be no remorse), let alone detect any serious purpose to amend his wrongdoing. Mr Hitchcock undoubtedly recognises that a tragedy has befallen Mr Haynes and Ms Campbell; that he and his business have suffered significant adverse consequences as a result; and he is undoubtedly sorry that this suffering has occurred. However, even with the eloquence of Mr Moses's submissions to enhance this aspect of Mr Hitchcock's contrition on sentence, there is a degree of reluctance in the contrition offered.

41 In conclusion, although I accept that there are subjective factors to take into account in mitigation, their effect on the penalties to be imposed will be minimal, given the great objective seriousness of the offences; the compelling need for general deterrence; the fact that subjective factors must be considered secondary to the objective seriousness of the offence (see the Full Bench decision in Maddaford v Coleman at [94]); and their limited nature in this case.

42 As earlier mentioned, the Court has found the offences against the defendant in Matter No.'s IRC 5660 and 5661 proven. A verdict of guilty is hereby entered against the defendant with regard to the charges in each such matter. The Court orders accordingly.

43 In determining the appropriate penalty, it is necessary to compel attention to occupational health and safety risks in order to ensure, without being oppressive, that persons are not exposed to such risks at their workplaces: see Warman International Limited v WorkCover Authority of New South Wales (1998) 80 IR 326 at 339.

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].

45 The following complete passage of the judgment of the Full Bench of the Court of Criminal Appeal in R v Vusumuzi Twala (per Badgery-Parker J, with whom Carruthers and Finlay JJ agreed, unreported, Court of Criminal Appeal, 4 November 1994, at page 7) is illuminating: However, in order to characterise any case as being in the worst case category, it must be possible to point to particular features which are of very great heinousness and it must be possible to postulate the absence of facts mitigating the seriousness of the crime (as distinct from subjective features mitigating the penalty to be imposed).

46 In this case the maximum penalty for each of the offences with which Mr Hitchcock has been charged is $55,000 and I have considered whether such a penalty should be imposed.

47 I do not propose to repeat my earlier observations on the seriousness of the objective factors in this matter, but I would particularly mention the following aspects: (a) the Company's active role in actually increasing the risks faced by its drivers; (b) Mr Hitchcock's extensive experience in the industry, including his familiarity with industry safety regulations and active involvement with the RTA on safety matters; (c) deliberate disregard for safety requirements (such as the log-book hours) in an industry which has long been the subject of regulation to specifically avoid accidents such as Mr Haynes's; and (d) that there is little, if anything, to mitigate the objective seriousness of the offence (as distinct from subjective features mitigating penalty).

48 However, after careful consideration, I have come to the view that, notwithstanding its grave seriousness, this case lacks the particular qualities of odium or wickedness described in R v Vusumuzi Twala which would propel it into the worst category of cases thereby attracting the maximum penalty. This is not a case of an individual (or a company, for that matter), deliberately disregarding safety procedures in the expectation that harm would result. I have the impression that Mr Hitchcock, having run a successful blemish-free haulage business for 27 years, believed that his business was protected from accidents of this nature: he took meticulous care of his trucks and employed tough, hardened men whom he believed could look after themselves and meet the demands of a tough industry. They might push themselves to the absolute limit (which was well beyond the RTA's limit), but nonetheless they would know and abide by that personal limit (although as the expert evidence in this case showed, the reality is that drivers cannot properly make such judgements when fatigued). Further, it is Mr Hitchcock's first offence under the Act, and in some of the evidence at trial there were at least semblances of attempts (albeit ineffectual) to recognise fatigue as a safety issue. Whilst general deterrence must play a significant part in the objective seriousness of these offences: this is one of the first of such prosecutions under the Act despite the long-standing, industry-wide nature of the problem.

49 Additionally, the penalty which I will impose shall be reduced by virtue of the subjective features discussed earlier in the judgment. Further, I have specifically taken into account that this matter concerns a first offence.

50 There was no dispute that the principle of totality discussed in O'Sullivan v The Crown in the Right of the State of New South Wales (Department of Education and Training) (2003) 128 IR 158 (at [177] - [178]) applies in this case. The defendant emphasised that the common elements of the two offences were substantial and submitted that the defendant should not be penalised more than once for those common elements. Mr Moses did not suggest that the offence under s16 was any less serious than the offence under s15. I agree with these submissions and will take them into account in order to determine a penalty which is appropriate to the overall criminality of the offences for which Mr Hitchcock is being sentenced.

51 In determining penalty, I have considered the objective seriousness of the offences (including the compelling need for general deterrence) and the limited subjective factors discussed earlier, including Mr Hitchcock's high civic standing. I consider that the following penalties are appropriate: (a) in Matter No. IRC 5660 of 2001, a fine of $38,000; and (b) in Matter No. IRC 5661 of 2001, a fine of $38,000.

52 Applying the principle of totality discussed above, I consider the total fine should be reduced to $42,000. Accordingly, the fines in relation to each offence are: (a) in Matter No. IRC 5660 of 2001, a fine of $21,000; and (b) in Matter No. IRC 5661 of 2001, a fine of $21,000. 53 The prosecutor should have a moiety of the fines. By consent, the question of costs was adjourned.

ORDERS 54 The Court makes the following orders: (1) in Matter No. IRC 5660 of 2001, James Gordon Hitchcock is fined an amount of $21,000. The prosecutor shall have a moiety of the fine;

(2) in Matter No. IRC 5661 of 2001, James Gordon Hitchcock is fined an amount of $21,000. The prosecutor shall have a moiety of the fine; and

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