Kemp v Walker; Kemp v Robbie Walker Transport Operations

Penalty

The defendants accept that the breach of the load restraint requirements here amounted to a severe risk breach, on both the bases under s 60(2)(c) referred to above. Section 60(1) provides: "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."
In The Roads and Traffic Authority of New South Wales v Fletcher International Exports Pty Limited [2008] NSWSC 936, Price J considered s 60. At [40], his Honour noted the structure of the section and observed: "The matters to which a court is required by s 60(2) to have regard depends upon the classification of the risk breach as 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."
In written submissions counsel for the prosecutor, Mr Higgins, set out a passage of the second reading speech of the responsible minister when introducing the Bill for the 2005 Act, which emphasises the breadth of the chain of responsibility imposed by the legislation for breaches of the statutory requirements: "An important concept in the new provisions is the extensive chain of responsibility requirements introduced in the Bill. Under the chain of responsibility prescribed parties including consignors, packers, loaders, or consignees of goods, drivers and operators of vehicles who had control over a step in the process of distributing goods by road may, in relevant circumstances, be legally liable for breaches of road transport laws. These provisions recognise that to date, drivers and operators have generally been the focus of enforcement action for breaches of road transport law … . Under the new regulatory framework, those other parties in the transport chain who by their actions, inactions or demands put drivers and other roads users at risk and gain unfair commercial advantage may also be committing an offence and be liable to significant penalties. In practical terms, this means that it is essential that all parties to the chain of responsibility - consignors, packers, loaders, operators, drivers and in some cases consignees - need to be aware of the requirements of road transport law particularly relating to mass, dimension and load restraint. They also need to have active systems in place to manage these risks to minimise the chance of road transport laws being breached."
Counsel for the defendants, Mr Gotting, submitted that RWTO's offence should be seen as in the mid to low range of objective gravity, and Mr Walker's in the low range. He noted that neither the company nor Mr Walker was aware of the defect in the dunnage. The driver was confident that the load was secure before his departure from Newcastle, and checked that it was secure the following morning before continuing the journey. Mr Walker was in Wangaratta at the time, and played no part at all in placing or securing the load.
Mr Gotting relied upon the fact that neither RWTO nor Mr Walker had previously come under notice for contravention of any road safety legislation or any load restraint regulations or guidelines. He noted the lengthy period over which RWTO had been trading, and the much lengthier period over which Mr Walker had been involved in the transport industry, including as a director of RWW. The incident in 2008 was the only previous occasion upon which a part of a load had fallen from a vehicle while being transported by RWTO, an event which the defendants chose to disclose in these proceedings.
Mr Gotting also relied upon the evidence of Mr Walker's responsible approach to the recruitment of drivers through RWW, and the steps he took personally to ensure compliance by them with regulatory requirements, including those directed to the securing of a load. He also referred to the fact that Mr Walker had personally inspected the load on the vehicle driven by Mr White a few days before the fatal incident to ensure that it was safely secured, and to his prompt and thorough response to the improvement notice forwarded to him after the incident.
Finally, Mr Gotting relied upon Mr Walker's lack of any criminal history, his good character and his deep remorse, as well as his co-operation with RMS and the early pleas of guilty entered by him and RWTO. While he acknowledged the importance of general deterrence for offences such as these, he submitted that specific deterrence has no part to play. Quite apart from Mr Walker's good record and full acceptance of responsibility for the present breach, it is clear that RWTO has ceased trading and his involvement in the transport industry has come to an end.
Mr Gotting accepted that a fine should be imposed upon RWTO, mitigated by all the circumstances to which I have referred, but that Mr Walker should have the benefit of a dismissal under s 10 of the Crimes (Sentencing Procedure) Act 1999, if necessary, accompanied by a good behaviour bond. He noted that the Act envisaged that there might be circumstances in which s 10 could be applied, referring to s 187(6). The effect of that subsection is that a person cannot be dealt with under that section for a number of specified offences, including a severe breach of a load restraint requirement, if that person had been given the benefit of the section in the previous 5 years in respect of any one of those specified offences. For completeness, he also referred to similar provisions in s 203 of the Road Transport Act 2013 and s 27F of the Heavy Vehicle (Adoption of National Law) Act 2013.
Undoubtedly, Mr Walker has made out a strong subjective case. I accept that he is a person of good character, and that this tragic incident has had a deep and enduring effect upon him. I also accept that there is no prospect of his being involved in an offence of this kind again. However, I am persuaded by the submissions of Mr Higgins that it is not appropriate to deal with him under s 10.
General deterrence necessarily looms large in offences such as this. As Mr Higgins pointed out in oral argument, the legislation recognises that this is an industry where "there are a number of different stages at which people discharge a responsibility under the Act," to ensure the prevention, or at least the reduction, of risk to public safety and to road infrastructure. He emphasised the responsibility cast upon the director of a corporation by s 178(1), a responsibility which is personal rather than vicarious.
Part of the load fell from the vehicle not just because of the sap inclusion defect, of which RWTO and Mr Walker were unaware, but also because the softwood dunnage was inadequate to support the load. Mr Higgins referred to the Load Restraint Guide, being guidelines and performance standards for the safe carriage of loads on road vehicles, issued by the National Transport Commission and the RTA. Dunnage is dealt with in section B of the Guide, and contains the following admonition (at p47): "Timber which is used for dunnage should be relatively free of knots and splits. For heavy loads, such as large steel sections that are supported on small areas of contact, the dunnage should be strong enough to prevent it crushing or splitting."
I cannot accept Mr Gotting's submission that, on the part of RWTO and Mr Walker, the offence falls into the lower range of objective gravity. Convictions of both defendants should be recorded and fines imposed. However, the fines must reflect the mitigating circumstances of the case and will be reduced by 25% in recognition of the early pleas of guilty.
The company which engaged RWTO, KGB, has also faced prosecution because of the incident. It pleaded guilty to similar offences, severe breach of the load restraint requirement, in its capacity as loader of the goods; s 55(1) of the Act, and consignor of the goods: s 53(1). Each offence carried the same maximum penalty, $27,500. Garling J convicted the company of both offences but, taking the view that they encompassed the criminality of one incident, imposed a fine of $18,150 on the first offence only: Kemp v KGB Protective Coating Pty Ltd [2014] NSWSC 586. His Honour assessed the fine after allowing a 25% discount for the pleas of guilty. It appears that KGB did not present a favourable subjective case such as that made out here. The decision was made available to me after I had reserved my decision in the present case, and it is not suggested that strictly the principles of parity are attracted.
But for its plea of guilty, I would have imposed upon RWTO a fine of $22,000. A 25% reduction produces a figure of $16,500. Mr Walker is entitled to a significant degree of leniency in the light of his personal circumstances. But for his plea of guilty, I would have imposed a fine of $1,200. A 25% reduction produces a figure of $900.
Accordingly, RWTO is convicted and fined $16,500. Mr Walker is also convicted and fined $900. It is agreed that the defendants should be ordered to pay the prosecutor's costs, assessed at $20,000.

At a glance

Court

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Judgment (6 paragraphs)

Cases Cited (3)