Kemp v KGB Protective Coating Pty Ltd

Supreme Court of NSW|2014-05-16|Before: Garling J

Judgment 1By a Summons filed on 12 July 2013, in proceedings numbered 2013/212114, Peter Stewart Kemp ("the prosecutor") charges KGB Protective Coating Pty Ltd ("the Company") with an offence contrary to s 55(1) of the Road Transport (General) Act 2005 ("RTG Act") in that: "Being the loader of goods onto a combination for transport by road within the meaning of s 20 of the RTG Act, in that on 14 July 2011, on the Mitchell Highway, one kilometre west of Bradwardine Road near Bathurst in the State of NSW, a breach of a load restraint requirement occurred, namely, clause 62(2) of the Road Transport (Mass Loading and Access) Regulation 2005 ('MLA Regulation'), when part of the load of five prefabricated steel beams fell from the combination and collided with six motor vehicles travelling in the opposite direction, causing the death of Leonie Darling, an appreciable risk of harm to public safety and a serious risk of harm to road infrastructure." 2The Company, as the loader of the goods, has pleaded guilty to that charge. 3By a Summons filed on 12 July 2013, in proceedings 2013/212122, the prosecutor charges the Company with an offence contrary to s 53(1) of the RTG Act in that: "Being the consignor of goods within the meaning of s 20 of the RTG Act, in that on 14 July 2011 on the Mitchell Highway, approximately one kilometre west of Bradwardine Road near Bathurst in the State of NSW, a breach of a load restraint requirement occurred, namely, clause 61(2) of the MLA Regulation, when part of the load of five prefabricated steel beams fell from the combination concerned, and collided with six motor vehicles travelling in the opposite direction, causing the death of Leonie Darling, an appreciable risk of harm to public safety and a serious risk of harm to road infrastructure." 4The Company, as consignor, has pleaded guilty to that charge. 5The Company now stands to be sentenced for these offences. The maximum penalty for each of these offences is determined by reference to the categorisation of the offence as being either minor, substantial or severe, as those terms are used in ss 59 and 60 of the RTG Act. 6Here, both the prosecution and the Company agree that each of these offences is properly to be categorised as a severe breach of the statutory requirements. Accordingly, the maximum fine that can be imposed for each offence is 250 penalty units which amounts to $27,500. 7Each of these offences fell within the jurisdictional limit of the Local Court of NSW. Section 180(1) of the RTG Act specifically provides that these offences can be prosecuted summarily before the Local Court. 8Whilst this Court undoubtedly has jurisdiction to hear and determine these charges, it is generally inappropriate for a prosecutor to engage the summary jurisdiction of this Court to deal with offences of this kind, where the maximum penalty is well within the jurisdiction of the Local Court. These charges could have been, and should have been, dealt with in the Local Court.

Principles of Sentencing 9The imposition of a sentence in this case, calls up the common law principles relating to sentencing, and various statutory provisions. 10The Parliament of NSW has set out the purposes for which a court may impose a sentence on an offender including a company. Section 3A of the Crimes (Sentencing Procedure) Act 1999 provides that those purposes are: "(a) to ensure that the offender is adequately punished for the offence; (b) to prevent crime by deterring the offender and other persons from committing similar offences; (c) to protect the community from the offender; (d) to promote the rehabilitation of the offender; (e) to make the offender accountable for his or her actions; (f) to denounce the conduct of the offender; (g) to recognise the harm done to the victim of the crime and the community." 11It is self evident that these purposes overlap, may be in conflict, and cannot be considered in isolation, one from the other in their application to a particular case. These purposes do not rank in any order of priority. 12The terms of s 21A(1) of the Crimes (Sentencing Procedure) Act, mean that the Parliament has preserved the entire body of judicially developed, or common law, sentencing principles: R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 at [56]-[57], Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [18]. These common law principles have been developed over time by courts to provide guidance for the exercise of the sentencing discretion by every judge. The principles are to be found in decided cases. 13This is a case where, given the nature of the offence and the fact it occurred on a public road, the principle of general deterrence must play an important but necessarily proportionate, role. In these circumstances, the proper punishment of the Company will operate as a general deterrence for other companies who consign and load goods onto heavy vehicles for transport on the public roads of NSW from committing breaches of transport legislation, in particular of load restraint requirements, and thereby enhance road safety.

The Facts 14The parties have agreed on a set of facts which describe the conduct of the Company, the offences and their consequences. Although I am not bound to accept these agreed facts, in this case I do so, insofar as I set out the facts below: "1. At all material times Robert John Walker (d.o.b: 30 Jan 1952) of 32 Cusack Street Wangaratta Victoria was the sole director and 50% shareholder of Robbie Walker Transport Operations Pty Ltd (ACN 078 993 012) ('RWTO'). The registered office and princip[a]l place of business of RWTO is located at 18 Baker Street, Wangaratta Victoria. 2. RWTO operates as a transport company. At the material times RWTO directed the operations and controlled the movements of heavy vehicle combinations owned and registered to a related entity, Robbie Walker (Wangaratta) Pty Ltd (ACN 005 963 084). 3. At the material times RWTO was responsible for the control and direction of a heavy vehicle combination which consisted of a white Iveco MP4700 'cab over' prime mover Victorian registration WRV 989 and a flat-bed extendable 1999 Haulmark trailer registration 436 89S ('the Vehicle'). Both components of the Vehicle were registered to Robbie Walker (Wangaratta) Pty ltd. 4. KGB Protective Coatings Pty Ltd (ACN 75 125 773 220) ('KGB') is a company which is engaged in the activity of applying protective coatings to metal structures. It has a facility located at 140 Bulls Garden Road in Gateshead, a suburb of Newcastle. 5. In late 2010, KGB was engaged by SinoStruct Pty Ltd (ACN 128 995 764) ('SinoStruct') to provide respraying of coatings to structural steel components. The components were being shipped from China to the port of Newcastle on behalf of SinoStruct. 6. The components were intended to form part of a screening and ore crushing facility being built by SinoStruct under contract to a division of Newcrest Mining Limited in relation to the Cadia East mining project. The Cadia East project site is located approximately 25 kilometres from Orange in New South Wales. 7. The first shipment of components was delivered in November 2010. Components which arrived undamaged were transported by road directly from the port of Newcastle to the Cadia East project site. In the event that the components had been damaged in transit, Mr Philip Terrible, a representative of SinoStruct, would arrange for the components to be transported to KGB for respraying, prior to despatch to the Cadia East project site. 8. In July 2011, a shipment of components had arrived at the Newcastle wharf. A number of the components were required to be resprayed due to damage incurred in transit. On 13 July 2011, Order Number 876496 was raised by SinoStruct with KGB in relation to respraying of the damaged components. That Order described the work required as 'Rework 7PKS + 2 Flat Racks'. 9. During shipment from China the steel components were packed in a steel 'cradle'. In the course of being reworked at KGB, it was necessary for the steel components to be unpacked from the cradle, and the loads subsequently re-assembled for road transport. 10. On 13 July 2011, a number of components had been resprayed at KGB and were ready for transport. That load consisted of three large steel beams and two shorter sections of steel fabrication ('the Load'). Those components, and their dimensions and mass were identified as follows: I. 3313C30685 14.17 metres in length x 3 metres wide 3.4 tonne II. 3313C30660 10.45 metres in length x 4 metres wide 3.4 tonne III. 3313c30692 14.45 metres in length x 1 metre wide 4.4 tonne IV. 3313FR30652 (x2) 2.34 metres x 2.3 metres wide 530kgs

.... 17. On the morning of 13 July 2013, staff employed by KGB were involved in assembling the components of the Load. The process involved the components being initially assembled onto trolleys. The Load would then be lifted by the use of a crane owned by K[GB] and operated by KGB staff. 18. KGB staff assembled the Load in the following order: Beam I (3313C30692) was placed at the bottom of the Load. Two lengths of metal 'I' beam were placed on top of Beam I Off-cuts of carpet were placed between Beam I and the metal 'I' beams and on top of the metal 'I' beams Beam II (3313C30660) was placed next on top Lengths of hardwood 'dunnage' were placed on top of Beam II Off-cuts of carpet were place[d] under and over the hardwood dunnage Beam III (3313C30692) was placed next on top The two smaller frame pieces 3313FR30652 (x2) were loaded on top of Beam III 19. At around 3.00pm the Vehicle arrived at KGB. 4 pieces of softwood dunnage onto the deck of the trailer. The dunnage pieces measured approximately 100 x 150 mm in cross section and were approximately 2 metres long. The softwood dunnage was supplied by RWTO and consisted of Radiata pine. One of the pieces of softwood dunnage included a defect known as a sap inclusion. That defect was not obvious except on close inspection, but did have the impact of reducing the load bearing capacity of that dunnage. 20. Staff employed by KGB with [the driver] proceeded to place the Load onto the trailer of the Vehicle. The trailer was backed under the Load which was lowered onto the deck of the trailer. This process was completed by KGB staff by carrying out the following tasks: Operating two 10 tonne cranes at the KGB premises; Supplying and placing the steel 'I' beams, carpet offcuts and hardwood timber dunnage. Assisting the driver to place lights along the Load Standing on top of the Loan and passing chains over the Load 21. The KGB staff who placed the Load onto the Vehicle were under the supervision of KGB. KGB staff were not trained in load restraint. KGB staff did not measure the dimension of the Load. ... 23. On 13 July 2011 Delivery Docket 2852 was produced by KGB nominating the delivery address as 'SinoStruct'. The Delivery Docket stated: 'Please receive in good order and condition the under mentioned goods: 3 x beams C30660 C30685 C3069S FR 30652 (x2)' ... 25. Upon leaving the KGB premises at Gateshead Newcastle, the Vehicle was driven to Dunedoo where the driver rested overnight. . 26. On 14 July 2011, the Vehicle transported the Load by road from Dunedoo to Bathurst via Mudgee and Rylstone. During this part of the journey the Load was observed by a number of witnesses to protrude from the side of the Vehicle. 27. At approximately 8.30am on 14 July 2011, the Vehicle was travelling westwards on the Mitchell Highway at a location approximately 1 kilometre west of the Bradwardine Road west of Bathurst towards Orange when part of the Load fell from the Vehicle and collided with six vehicles travelling in the opposite direction. 28. As a result of the Load falling from the Vehicle, Ms Leonie Darling was killed, and six vehicles and the road surface were damaged. 29. Subsequent to the incident it was discovered that the softwood dunnage supplied by RWTO had compressed under the weight of the Load, and one piece had failed completely due part of the Load being placed directly into contact with the sap inclusion."

Specific Statutory Considerations 15In imposing a penalty for each of these offences, there are a number of specific statutory provisions to which it is necessary to have regard. 16The first of these is clause 61(2) of the Road Transport (Mass Loading and Access) Regulation 2005 ("MLA Regulations"). That clause provides that a load on a vehicle or trailer "... must be secured so that it is unlikely to ... be dislodged from the vehicle." 17As well, s 60 of the RTG Act is also relevant. It is in the following form: "60 Matters to be taken into consideration by courts (1) The purpose of this section is to bring to the attention of courts the general implications and consequences of breaches of mass, dimension or load restraint requirements when determining the kinds and levels of sanctions to be imposed. (2) In determining the sanctions (including the level of fine) that are to be imposed in respect of breaches of mass, dimension or load restraint requirements, a court is to take into consideration the classification of the breach under this Part and, having regard to that classification, the following matters: (a) minor risk breaches ... (b) substantial risk breaches ... (c) severe risk breaches involve one or more of the following: (i) an appreciable risk of harm to public safety or the environment, (ii) a serious risk of accelerated road wear, (iii) a serious risk of harm to road infrastructure, (iv) a serious risk of increased traffic congestion, (v) a serious risk of diminished public amenity, (vi) a serious risk of unfair commercial advantage. ..." 18As Price J said in Roads & Traffic Authority NSW v Fletcher International Exports Pty Ltd [2008] NSWSC 936; (2008) 51 MVR 41 at [40]: "40 The purpose of s 60 is to bring to the attention of courts when considering an appropriate sentence the consequences of a failure to comply with a breach of mass, dimension or load restraint requirement. The matters to which a court is required by s 60(2) to have regard depends upon the classification of the risk breach as a minor, substantial or severe. The matters which a court is required to consider by the Legislature for a severe risk breach are necessarily very different to those for a minor risk breach. The requirement that regard be had to an appreciable risk of harm to public safety is exclusive to sentencing for a severe risk breach: s 60(2)(c)(i). For a severe risk breach it is the seriousness of the risk which distinguishes those matters detailed in subparagraphs (ii)-(vi) from the matters to be considered for a substantial risk breach: s 60(2)(b)(i)-(v). Nothing in s 60 affects any other matter that a court may consider when sentencing an offender such as s 3A of the Crimes (Sentencing Procedure) Act which sets out the purposes for which a court can impose a sentence and s 21A of the same Act which provides for aggravating and mitigating factors." 19Because I am imposing a sentence for a severe risk breach, I am obliged to, and will, have regard to each of the matters in s 60(c)(i)-(vi) inclusive, insofar as they are presently relevant. As I see it, the matters within that section which are of particular relevance are: (a)an appreciable risk of harm to public safety as was demonstrated by what in fact occurred; (b)a serious risk of harm to the road infrastructure as occurred when the load, having fallen off the truck, damaged the road itself, and which may have, but fortunately did not occasion any damage to other roadside infrastructure; (c)the serious risk of traffic congestion caused by the happening of either of the two events to which I have just made reference or, alternatively, if the load shifted in the course of transport. 20As well, the provisions of s 177 of the RTG Act which deal with double jeopardy are also relevant. I will discuss that section in more detail later in these sentencing remarks. 21The provisions of s 21A of the Crimes (Sentencing Procedure) Act 1999 must also be taken into account. Section 21A(2) provides for matters which are regarded as aggravating factors to be taken into consideration when imposing a sentence. Here, relevantly, s 21A(2)(g) requires the Court to take into account, as an aggravating factor, that the injury, loss or damage caused by the offence was substantial. There is no doubt that those consequences of this offence were substantial. The loss of the life of Ms Darling, is the most serious consequence of this offence. 22The Company argues that it cannot be held responsible for the death of Ms Darling, whose car was struck by the load after it shifted and fell from the vehicle. I accept that the Company alone did not cause the death of Ms Darling, however, I am satisfied beyond reasonable doubt, that the failure by the Company in either of the capacities in which it was charged, caused the death of Ms Darling. If the load had been properly secured, such that it was unlikely to fall, as the legislation required, then Ms Darling's death would not have happened. I will have regard to Ms Darling's death and the damage caused to other motor vehicles as an aggravating factor as I am required to do by s 21A(2)(g) of the Crimes (Sentencing Procedure Act) Act. 23Section 21A(3) of Crimes (Sentencing Procedure Act) Act requires the Court to have regard to particular factors as mitigating the offence. In accordance with that section, here, I have regard to: (a)s 21A(3)(e), that the Company does not have any record of previous convictions; and (b)s 21A(3)(k), that the Company has pleaded guilty at the earliest available opportunity. 24The provisions of s 21A(3)(g) of the Crimes (Sentencing Procedure) Act, have the effect that, that the Company is remorseful and as provided for in s 21A(3)(i), is unlikely to offend again, then they are matters which can be taken into account by way of mitigation when considering the appropriate penalty to be imposed. It will be necessary to consider whether this is so in due course. 25Since the Court is imposing a fine on the Company, s 6 of the Fines Act 1996, requires the Court to consider such information as is provided about the means of the Company to pay the fine. The Company has tendered a financial statement to 30 June 2013. In that year, the Company's gross income exceeded $3 M. After taking into account the cost of sales, direct expenses referrable to the sales made, and more general expenses, the Company was left with an operating profit of a little less than $85,000. At the end of that year the Company had current assets of a little over $740,000 and, ultimately, had a net asset position of a little under $170,000. 26I am not satisfied from a consideration of this material, that the Company lacks the means to pay any fine which may imposed. Nor am I satisfied that any fine which may be imposed would have any significant adverse financial impact on the commercial operations of the Company. I do not propose to regard this factor as having any significant weight in assessing the appropriate fine to be imposed.

Plea of Guilty 27An offender, such as this Company, which pleads guilty to the offences charged, is entitled to a discount with respect to any penalty which is imposed so as to recognise the utilitarian value of the plea to the administration of justice in NSW. It is accepted by the prosecution that the Company has pleaded guilty at the earliest available opportunity and, accordingly, is entitled to a full discount of 25% on any penalty which the Court would otherwise have imposed.

Unlikelihood of Reoffending 28The Company did not file any affidavit evidence from anyone associated with, or connected to it, with respect to the events the subject of the offence. 29The Company tendered what it described as its "new procedure" for loading contractor vehicles for transport. Counsel for the Company submitted that this new procedure demonstrated that the Court should find that the Company is unlikely to breach its road transport obligations in the future. 30Careful attention to the detail of the procedure which is contained on a single page, leads me to the conclusion that, rather than addressing any steps which the employees of the Company could, or might, take to avoid vehicles loaded by it, or consigned by it, being in breach of road transport legislation when the vehicle leaves the Company's premises and drives onto the public roads, the protocol in fact directs employees of the Company to refrain from being involved in any loading procedure. 31Paragraphs 4, 5, and 6 of the document directly relate to not taking any action and, in essence, seek to ensure that the Company no longer undertakes loading, and thereby avoids any responsibility, at all, for the restraint of a load on any vehicle which leaves the Company's premises. 32I am not satisfied that paragraphs 7, 8 and 9 of the document suggest that the Company, or its employees, thereby discharges all of its legal obligations. I do note that, contrary to the apparent position at the time of these offences, the new procedure requires employees to be given a copy of, and trained in the use of, the load restraint guide. 33I am not persuaded on the balance of probabilities, that this new procedure will avoid any conduct which may constitute the one or more offences in the future. It may provide a basis for the Company being able to mount a defence to any allegation that it has been in breach of its obligations as created by the statute, but I am not persuaded that such steps as have been taken to rectify the procedure which previously existed, will mean that the Company is unlikely to commit any further offences of the kind with which it is charged.

Remorse 34It is appropriate under s 21A(3)(i) of the Crime (Sentencing Procedure) Act to take into account in mitigation of the offences, that the Company has expressed remorse for its conduct. Except for the plea of guilty to the offences, there is no evidence that the Company has accepted responsibility for its actions, nor has the Company, other than by its plea, acknowledged any injury, loss or damage caused by its actions; nor is there any evidence that it has made any reparation for such injury, loss or damage as the statute requires. I am not persuaded on the balance of probabilities that the mere entry of a plea indicates any remorse on the part of the Company. 35I am not satisfied that the Company is entitled to any mitigation by reason of any expression of remorse or any demonstration of remorse with respect to these offences. To the extent that the plea of guilty constitutes a demonstration of remorse, that demonstration is adequately allowed for in the discount allowed for the plea of guilty.

Double Jeopardy 36Section 177 of the RTG Act is in the following form: "177 Double Jeopardy (1) A person may be punished only once in relation to the same failure to comply with the particular provision of the Road Transport legislation, even if the person is liable in more than one capacity. (2) Despite subsection (1), a person may be punished for more than one breach of a requirement where the breaches relate to different parts of the same vehicle, or combination." There is no suggestion that subsection (2) applies here. 37It is to be observed from the Summonses that the prosecutor charges the company in almost identical terms with committing an offence either under s 53 of the RTG Act or s 55 of the RTG Act, because the failure alleged is that it was in breach of cl 61(2) of the MLA Regulations. That clause requires that a load be secured in a manner which means that it is unlikely to dislodge. The operative facts here depend upon the load falling from the vehicle, and the consequential conclusion that the load was not secured as required by cl 61(2) of the MLA Regulations. Intentional is not a relevant factor. 38The separate offences with which the Company is here charged, relate respectively to it, in its capacity as the consignor and also in its capacity as a loader, but the operative facts are, in substance, the same. 39Counsel for the prosecutor submits that s 177 has no application to the proceedings here. Counsel for the defendant submits that although the company has properly pleaded guilty to both offences, the Court is prohibited from imposing more than one penalty. 40There is no authority directly on the proper interpretation of s 177 of the RTG Act. In Palfrey v South Penrith Sand & Soil Pty Ltd [2012] NSWSC 1357, Barr AJ was considering a question of whether the charging of a company with offences against the Road Transport legislation in more than one capacity constituted an abuse of process. He was not dealing directly with the issue of the imposition of more than one penalty. 41At [49] his Honour turned his attention to s 177. He said this: "49 As I observed earlier, Mr Hatcher submitted that s 177 of the Act prevented the entry of conviction for more than offence in the example I have used. I doubt whether that is so. The parties made no reference to authority about the meaning of double jeopardy as used in the Act's introduction to that section. Subs (1) is not easy to understand. It speaks of a person's being "liable" in more than one capacity. The liability must be "in relation to the same failure..." but whether the section refers to a liability to be convicted or merely a liability to be prosecuted in more than one capacity is not clear. At any rate, the section is clear when it states that a person may be punished only once. If the Parliament had intended the person to be convicted only once it would have presumably had said so. Accordingly, I do not think that s 177 is a bar to the bringing of multiple charges in the examples I have used. 50 However, I am of the opinion, that it is an abuse of process to charge the company in these several ways when there is a single underlying event and only one sentence can result. The prosecutor's practice in the framing of all the outstanding summonses has produced waste and expense." 42It is to be observed that his Honour regarded the section as being applicable, at the stage of imposition of penalty rather than at the stage of the charging by a prosecutor of a defendant with more than one offence. 43The ratio decidendi of his Honour's decision is to be found in [49], in the last sentence, namely, that s 177 is not a bar to the bringing of multiple charges. However, his Honour's remarks, which are to be found in the next paragraph, namely that when there is a single underlying event, only one sentence can result, although obiter dicta, are the carefully considered expression of a view with respect to the proper application of s 177 of the RTG Act in circumstances similar to those which here exist. 44The prosecutor submitted that because the charges were framed with respect to separate sections of the RTG Act, there was no occasion to conclude that there was a "same failure" to comply with a particular provision of the Road Transport legislation, because each section of the Act was different and, accordingly, there was no room for the phrase "same failure" to operate in these circumstances. 45Counsel for the defendant submitted that the expression "same failure" should be interpreted in the circumstances of this case to apply to the core allegation of a failure, or breach, which has given rise to both offences, and which, here, is the failure to comply with the provisions of cl 61(2) of the MLA Regulation. 46Having regard to the terms of the Summonses, and the particulars provided as to the conduct which it is alleged constituted the offences, in the context of the use of the words "even if the person is liable in more than one capacity" at the end of s 177 of the RTG Act, in my view, the proper conclusion to be reached is that, contrary to the submissions of the prosecutor, the provisions of s 177 of the RTG Act have application here. Accordingly, the Court is constrained from imposing more than one penalty. This decision is consistent with the judgment of Barr AJ in Palfrey. 47The breach of the Road Transport legislation, namely, that the load was not properly secured, is identical with respect to each of the two offences. The only difference between the offences is the capacity in which the Company is charged - in one offence as the consignor, in another offence as the loader. 48In those circumstances, I am abundantly satisfied that s 177 of the RTG Act has application. 49I should say that the prosecutor conceded that, even if his submission be correct, and that s 177 of the RTG Act did not apply, nevertheless the Court, by having regard to the common law principle of totality in sentencing, and the decision of the High Court of Australia in Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610, would reach a conclusion in the circumstances of these two offences, such that it would be inappropriate to impose a full fine with respect to each of the two offences as though they were entirely separate. 50The prosecutor accepted in his submissions that if the Court was to impose a full penalty with respect to one offence, then it should only impose a nominal penalty with respect to the second offence. This, counsel for the prosecutor submitted, would be a sufficient way of recognising that there was similarity of conduct by the Company which was reflected in the two separate charges. 51The effect of this submission, if I had accepted it, which I do not, is that it would only have lead to the imposition of a nominal penalty by way of a fine which would not have exceeded $1,000, with respect to the second offence.

Seriousness of Offence 52It is appropriate to make an assessment of the seriousness of the offence, and the Company's conduct. This assessment arises from the nature and circumstances of the offence: Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [27]. 53I am satisfied that the events underlying each offence which are substantially identical, amount to a serious example of a severe risk breach of a load restraint offence. The load which was being moved was a very large and heavy one, consisting of significant steel structural components for the mine infrastructure. The distance being travelled, from Newcastle to about 25km south of Orange via Dunedoo, Mudgee and Rylstone, amounted to hundreds of kilometres. The route taken included travelling significant distances along main roads, which might reasonably be expected to be carrying a substantial volume of traffic. The vast bulk of the journey was carried out over roads which are used by traffic, and could not be considered to be remote or unused roads. 54As a matter of fact, the load restraint failure caused the death of Ms Darling, an entirely innocent road-user who was complying with all of her obligations. The resultant collision involved all six vehicles, and a significant disruption to a major highway serving western NSW. 55The Company's responsibility for the event which transpired cannot be said to be a stand alone one. Nevertheless, it was a central role. The Company was the consignor of the load, it was involved in determining what components would be loaded onto the vehicle and whether, having seen the vehicle which arrived at its premises, that vehicle would be loaded with the components for the trip to the environs of Orange. Its staff were then involved by operating two cranes in loading the vehicle and assisting in securing it. It did so with staff who were not trained in load restraint. 56I have concluded that these circumstances all combine to show that these are very serious offences, and are offences which fall at the upper end of the range of seriousness.

The Company's Circumstances 57The Company has taken some steps to apparently address the deficiencies which it says led to the events in question. As I have earlier remarked, whilst steps have been taken, I have not been satisfied on the balance of probabilities that these steps will necessarily prevent any further offence. 58This has been a timely response by the Company to the events which have occurred, but that response has its limitations. 59I note, and take into account, that the dunnage which appeared to be appropriate, was defective in a latent way in the sense that the defect was not obvious without a close inspection. I also take into account that the defective dunnage was not supplied by the Company. 60However, except for the agreed facts, and the new procedure document, I have no other evidence which explains, from the company's perspective, how the offence came about. I can only conclude that there was a failure by the Company to address its legal obligations with respect to load restraint. 61I also note, and take into account, that the Company has agreed to an order of the Court that it pay the legal costs of the prosecutor in the sum of $25,000.

Penalty 62In considering the appropriate penalty to be imposed, it is necessary to keep in mind that the proper interpretation of s 177 of the RTG Act which, in my view, requires me to impose a penalty for only one of the two offences. 63I do so with respect to the offence of loading, which is contained in Summons No. 2013/212114. I have particular regard to the seriousness of the offence, and the need for general deterrence in light of the risk to public safety involved in such a breach of the Road Transport legislation. 64Without regard to any discount for the plea of guilty, I would have imposed a fine for the loading offence of 220 penalty units. I acknowledge that this fine approaches the maximum of 250 penalty units, but in fixing that sum, the approach reflects my conclusion of the objective seriousness of the criminality involved, taken together with all of the other factors, including the Company's circumstances. 65However, this notional penalty is to be reduced because of the entirely appropriate discount for the early plea of guilty. Accordingly, I have determined that the proper penalty to be imposed on the Company with respect to the loading offence is 165 penalty units. 66With respect to the second offence of the Company as a consignor, which is set out in Summons No. 2013/212122, I intend to record a conviction for the Company committing the offence, but in light of my conclusions with respect to s 177 of RTG Act, I refrain from imposing a penalty.

Sentence and Orders 67I make the following orders: In proceedings 2013/212114: (1)I convict KGB Protective Coating Pty Ltd of an offence contrary s 55(1) of the Road Transport (General) Act 2005. (2)With respect to that offence, I impose a fine of $18,150. (3)I order KGB Protective Coating Pty Ltd to pay the prosecutor's costs in the agreed sum of $25,000. In proceedings 2013/212122: (4)I convict KGB Protective Coating Pty Ltd of an offence contrary to s 53(1) of Road Transport (General) Act 2005. (5)I otherwise dismiss the Summons.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 May 2014

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