SCHERINI -v- CLEVELAND FREIGHTLINES PTY LTD [2018] WASC 5 (15 January 2018)

3 The respondent is a transport company that operates a commercial haulage transport business in South Australia and, relevantly for these proceedings, transports goods to Western Australia, where it has a depot in Welshpool. The offences arose out of hauls by its drivers to Western Australia on various dates from 13 January 2015 to 25 February 2015. The breaches were discovered in the course of an operation conducted by three Western Australian government agencies the Main Roads Department, WA Police and WorkSafe in Northam, the purpose of which was to identify heavy vehicle drivers who may be impaired by drugs, alcohol or fatigue.

4 The respondent was charged with the offences by the appellant, a WorkSafe inspector, on a prosecution notice dated 10 February 2016. By 24 June 2016, the respondent had indicated it intended to plead guilty to all charges the subject of this appeal. It gave formal notice of the pleas on 25 July 2016.

5 The respondent, a corporation, initially appeared by counsel. At a hearing on 16 September 2016, the learned magistrate, being satisfied that the presence of a representative of the respondent was needed for the sentencing proceedings, issued a notice to the respondent, under s 155 of the Criminal Procedure Act 2004 (WA) (CPA), requiring it to appear by a representative appointed under s 152 of the CPA. Pleas of guilty having been entered, the sentencing hearing proceeded on 8 December 2016, with an appointed representative of the respondent present.

6 The respondent had previously been convicted of and fined for similar offending on 7 January 2015. Consequently, it came to be sentenced for each offence as a 'subsequent offence' under the relevant penalty provision, namely reg 1.16, and was liable to a maximum penalty of $62,500 for each offence.

7 The learned magistrate sentenced the appellant by imposing a single fine[1] (commonly referred to as a global fine) of $9,000 for the nine breaches of reg 3.134(1) (the record-keeping offences) and a single fine of $18,000 for the six breaches of reg 3.131(1)(a) (the 'work hours' offences). The magistrate imposed global fines because the offences within each group formed, or were part of, a series of offences of the same or a similar kind.[2] However, his Honour arrived at the global fines by determining that the appropriate penalty was a $1,000 fine for each of the recordkeeping offences and a $3,000 fine for each of the 'work hours' offences, and multiplying those figures by the relevant number of offences. The question of the adequacy of the penalties does not turn on whether individual fines or global fines were imposed.

8 The respondent was also ordered to pay costs in the sum of $1,335.60.

9 The magistrate noted towards the end of his sentencing remarks that the total sum of the fines imposed and the costs ordered, 'in the context of a small, private company, is a significant amount of money'.[3] Earlier, in explaining why he had insisted in requiring a company representative to be present, his Honour said that he appreciated that 'any family business, if that's what it is, or small business, if that's what it is, will find the fines difficult in the current circumstances'.[4]

10 The appellant has appealed against the sentences pursuant to s 7 of the Criminal Appeals Act 2004 (WA). Leave is required in respect of each ground of appeal, and must not be given unless the ground has a reasonable prospect of succeeding.[5] The question of leave and the merits of the appeal were dealt with at the same hearing on 29 May 2017.

1. The learned magistrate erred in fact in finding the respondent was a small or family business;
2. The sentence imposed by the learned magistrate was manifestly inadequate, having regard to the:

1. Need for personal deterrence in light of the respondent's previous conviction; 2. Seriousness and extent of the offending; and

1. Standards of sentencing customarily observed in respect of the offences.
2. In the alternative to ground 2, the sentence imposed of $9,000 for 9 breaches of reg 3.134 of the Occupational Safety and Health Regulations 1996 (WA) was manifestly inadequate, having particular regard to the:

1. Need for personal deterrence in light of the respondent's previous conviction; 2. Seriousness and extent of the offending; and

1. Standards of sentencing customarily observed in respect of the offence.

12 For the reasons which follow, I have concluded that:

1. Leave should be granted in respect of ground 1, but the appeal should be dismissed insofar as it relies on that ground;
2. Leave should be granted in respect of ground 2, and the appeal should be allowed on that ground.

13 In light of that conclusion, it is not necessary to consider ground 3. It will be necessary to fix new penalties that are commensurate with the seriousness of the offending.[6]

14 In order to have a proper appreciation of the charges and the issues on this appeal, it is necessary to have regard to the relevant parts of the Regulations.

3.131. Commercial vehicle driver, duties of and in relation to

(1) A responsible person at a workplace must ensure that a commercial vehicle driver who is required to drive a commercial vehicle that forms the whole or part of the workplace

(a) drives the vehicle in accordance with regulation 3.132; and

(b) is certified by a medical practitioner as fit to drive the vehicle.

(1) A commercial vehicle driver must, so far as practicable, have

(a) for every 5 hours work time breaks from driving totalling at least 20 minutes including a break from driving of at least 10 consecutive minutes after 5 hours work time; and

(b) in any 14 day period no more than 168 hours of work time.

(2) In addition to subregulation (1), a commercial vehicle driver who drives without a relief driver must, so far as practicable, have

(a) in any 72 hour period at least 27 hours nonwork time, including at least 3 periods of at least 7 consecutive hours nonwork time, with each period separated from the next by not more than 17 hours; and ...

3.134. Record of commercial vehicle drivers' work time etc.

(1) A responsible person at a workplace must ensure that a record in accordance with subregulation (2) is established and kept current in respect of the work time, breaks from driving, and nonwork time of each commercial vehicle driver who is required to drive a commercial vehicle that forms the whole or part of the workplace.

(a) set out in a clear and systematic manner; and

(b) available for inspection by an inspector at all reasonable times; and

(c) kept for at least 3 years from the date of the last entry on the record.

18 It is trite that the references to 'record' and 'current', in context, must be taken to mean an accurate record that is complete at least by the time of inspection. Such a record is obviously intended to be an important means by which a responsible person and inspectors are able to monitor and ensure compliance by commercial drivers with the requirements of reg 3.132 (which include additional requirements in sub-regulations (3) and (4) that are not relevant for present purposes).

19 The terms 'commercial vehicle' and 'commercial vehicle driver' are defined in reg 3.130. It is sufficient for present purposes to note that the Regulations are concerned with the work conditions and fitness to drive of drivers of buses and heavy vehicles (i.e. vehicles having a gross vehicle mass of over 4.5 tonnes), in particular where such heavy vehicles are used or intended to be used for the carriage of goods for hire or reward. More specifically, they are concerned with such drivers who work more than 60 hours per week, more than 10 hours in any 24hour period more than once per week, or from midnight to 5.00 am more than once per week. The need for regulation of the number of hours worked by such drivers and to ensure their fitness to drive is obvious, given the potential risk to the safety of such drivers and other members of the community if such drivers are suffering from fatigue or some other impairment. Although the objects of the Occupational Safety and Health Act 1984 (WA), under which the Regulations are made, focus on promoting and securing the safety and health of persons at work, and to protect them at work against hazards, in the context of a 'workplace' that is a heavy vehicle driven on public roads with the potential for catastrophic consequences for other members of the community in the event of an accident, the protection of the broader community is clearly an equally important objective.

20 Apart from the requirements of reg 3.131 and reg 3.134, reg 3.133 requires a responsible person at a workplace to:

ensure that a driver fatigue management plan is developed and kept current by a competent person for every commercial vehicle driver who is required to drive a commercial vehicle that forms the whole or part of the workplace.

driver fatigue management plan, in relation to commercial vehicle drivers, means a written document setting out requirements and procedures relating to

(a) scheduling trips; and

(b) rostering drivers; and

(c) establishing a driver's fitness to work; and

(d) education of drivers in fatigue management; and

(e) managing incidents on or relating to commercial vehicles; and

(f) establishing and maintaining appropriate workplace conditions;

21 'Responsible person at a workplace' for the purpose of these regulations is defined in reg 3.130 to include an employer.

22 Each of reg 3.131(1) and reg 3.134(1) specifies the penalty for a breach of the regulation to be the reg 1.16 penalty.[7] Regulation 1.16 provides that, in the case of a body corporate, the penalty is $50,000 for a first offence, and $62,500 for a subsequent offence.

23 Each of the charges was pleaded in terms of the relevant regulation. The first nine charges were in the following terms (omitting the name of driver):

[The respondent] being a responsible person at a workplace failed to ensure that a record in accordance with regulation 3.134(2) of the Occupational Safety and Health Regulations 1996 was established and kept current in respect of work time, breaks from driving, and non-work time of [driver] who is required to drive a commercial vehicle that forms the whole or part of the workplace: contrary to regulation 3.134(1) of the Occupational Safety and Health Regulations 1996.

24 In respect of each charge, particulars were provided both in the pleading of the charge and below the charge. Each of the charges particularised the place of the recordkeeping offence as the respondent's depot in Welshpool. Each identified the commercial vehicle driver and the commercial vehicle involved. Nine drivers and nine separate vehicles were identified. The identity of those drivers is not material for the purposes of this appeal. They will be referred to by their initials. The nine vehicles were all prime movers. The particulars included the manner in which the records were not kept current. They are referred to in the outline of the facts below. The dates on which the offences were alleged to have occurred were as follows:

1. Charge 1 - 17 February 2015;
2. Charge 2 - 17 February 2015;
3. Charge 3 - 18 February 2015;
4. Charge 4 - 16 February 2015;
5. Charge 5 - 20 February 2015;
6. Charge 6 - 17 February 2015;
7. Charge 7 - Between 18 and 19 February 2015;
8. Charge 8 - 20 February 2015; and
9. Charge 9 - 18 February 2015.

25 From the factual context, where an offence is alleged to have been committed 'between' two consecutive dates, as in charge 7 and later charges referred to below, the allegation is that the offence occurred during a period spanning both dates.

26 The last six charges were in the following terms:

[The respondent] being a responsible person at a workplace failed to ensure that [DM], a commercial vehicle driver who was required to drive a commercial vehicle, that formed the whole or part of the workplace, (and who drove without a relief driver,) drove that vehicle in accordance with regulation 3.132(2)(a) of the Occupational Safety and Health Regulations 1996: contrary to regulation 3.131(1)(a), and 3.132(2)(a) of the Occupational Safety and Health Regulations 1996.

27 Again, the identity of the driver is not material. Although a specific submission concerning that driver was made in mitigation on behalf of the respondent, it is sufficient to refer to him by his initials. Again, in respect of each charge, particulars were provided both in the pleading of the charge and below the charge. Again, the place of the 'work hours' offence, in each case, was particularised as being the respondent's depot in Welshpool, the offence of course being concerned with the respondent's failure to ensure compliance by DM. The manner in which DM's work hours did not comply with reg 3.132(2)(a) was also particularised in each case in the prosecution notice, and is referred to in the outline of the facts below. The dates on which the offences are alleged to have occurred were as follows.

1. Charge 10 - Between 13 and 14 January 2015;
2. Charge 11 - Between 20 and 21 January 2015;
3. Charge 12 - Between 3 and 4 February 2015;
4. Charge 13 - Between 10 and 11 February 2015;
5. Charge 14 - Between 21 and 22 February 2015; and
6. Charge 15 - Between 24 and 25 February 2015.

28 The facts of the offences were stated by the prosecutor at first instance. They are not in dispute.

29 As I stated earlier, the respondent is a company based in South Australia, which operates a commercial haulage transport business that includes transporting goods between its Adelaide depot and its depot in Welshpool, Western Australian. At all material times, the persons named in the charges were employed by the respondent as commercial vehicle drivers. They operated as 'solo drivers' (i.e. without a relief driver) and drove commercial vehicles with a gross vehicle mass in excess of 4.5 tonnes.

30 The multi-agency operation, to which I referred earlier, was conducted in Northam in January and February of 2015 (the Northam operation). The prosecutor described the purpose of the Northam operation as being:

to target heavy vehicle drivers in the industry in relation to impaired driving, whether via drugs, alcohol or fatigue, as well as noncompliant and unroadworthy heavy vehicles.

She said that '[s]uch an operation stopped and recorded sightings of several of the [respondent's] trucks and commercial vehicle drivers'. Subsequent investigations of the respondent's records revealed that the respondent was failing to implement a system to accurately record the 'worktime break from driving and nonworktime' of many of their commercial vehicle drivers.

31 The facts of the individual charges were stated as follows:

In relation to charge 1, which refers to a driver employed by the accused called TB, TB's daily driving hours were recorded on both national driver work diary daily sheets and Western Australian fatigue sheets. On 17 February, TB's diary sheets indicate that he was driving east from the respondent's depot in Welshpool towards South Australia. At 9.10 pm on 17 February 2015, TB's diary sheet showed he was headed towards Caiguna, having apparently stopped in Coolgardie around 5 pm. This record is false, as, on 17 February 2015 at 9.10 pm, TB's truck was observed during the Northam operation by a Main Roads inspector.

Data obtained from the Safe-T-Cam Unit within the Department of Planning, Transport and Infrastructure based in South Australia, indicates that TB's truck was sighted in South Australia during the early hours on the morning on 19 February 2015. This is accurately reflected on TB's records for 19 February 2015. However, taking into account his sighting in Northam at 9.10 pm means TB travelled nearly 2600 kilometres in just under 30 hours.

In relation to charge 2, the driver employed by the accused is SA. SA's daily driving hours were again recorded on a national driver work diary daily sheet. On 17 February, SA's diary sheets indicate that he was driving west from the accused's depot in South Australia. At 11.30 pm on 17 February 2015, SA's diary sheets shows he was driving somewhere around the Balladonia locality. The record is false, as, on 17 February 2010 at 11.30 pm, SA's truck was observed during the Northam operation by a Main Roads employee. SA's records don't indicate he reached as far west as Northam during his trip at all.

In relation to driver 3, DT, DT's daily driving hours were also recorded on both national driver work diary daily sheets and Western Australian fatigue sheets. On 18 February, DT's diary sheets indicate that he was driving west from the accused's depot in South Australia. At 4.50 am Australian Central District Time on 18 February 2015, DT's diary sheet shows he is east of Southern Cross. This record is false, as, on 18 February at 4.50 am Australian Central District Time or 2.20 am Western Standard Time, DT was stopped in his vehicle during the Northam operation by WA Police. DT's records also don't indicate he reached as far west as Northam until 8 am Australian Central District Time.

In relation to charge 4, driver GG's daily driving hours were also recorded on national driver work daily diary sheets. On the days preceding 16 February 2015, GG's diary sheets indicate he was driving west from the accused's depot in South Australia. On 16 February, GG's diary sheets indicate he was resting in Kalgoorlie for most of the morning until 1 pm Australian Central District Time. This record is false, as, on 16 February 2015 at 1.10 pm Australian Central District Time, GG's truck was observed during the Northam operation by a Main Roads inspector. GG's records don't indicate he reached as far west as Northam at all during his trip.

BL's daily driving hours - his is in relation to charge 5 - were also recorded on national driver work diary daily sheets. On 20 February 2015, BL's diary sheets indicate he was driving west from the accused's depot in South Australia. At 1.23 am Western Standard Time on 20 February, BL's diary sheets show he is east of Balladonia. That record is false, as, at the same time, BL was stopped in his vehicle by the Northam operation by WA Police. BL's records don't indicate he reached as far west as Northam until 6.30 pm on the evening of 20 February 2015.

In relation to charge 6, SF's daily driving hours were recorded on a national driver work diary daily sheet. On 17 February 2015, SF's diary sheets indicate that he was driving east towards South Australia. At 7.52 pm Australian Central District Time on 17 February 2015, SF's diary sheets show he is heading east from Southern Cross towards Norseman. This record is false, as, at 17 February at 7.52 pm Australian Central District Time, SF was stopped in his vehicle during the Northam operation by WA Police. SF's records don't indicate that he stopped in Northam at all that day.

In relation to charge 7, driver LT's daily driving hours were also recorded on national driver work diary daily sheets. On 18 February, LT's diary sheets indicate that he was driving west from the accused's depot in South Australia. At 1.15 am Australian Central District Time on 19 February, LT's diary sheets show he is resting at Coolgardie. The record is false, as, on 18 February 2015 at 1.15 am Australian Central District Time, LT's truck was observed during the Northam operation by a Main Roads inspector. LT's records also don't indicate he reached as far west as Northam at all during his trip.

In relation to charge 8, driver JS's daily driving hours were recorded on weekly trip sheets. At 10.25 pm on 20 February 2015, JS's trip sheet shows he is not working. This record is false, as, on 20 February at 10.25 pm, JS was stopped in his vehicle during the Northam operation by WA Police. After being stopped by police, JS was drug tested and ordered not to continue to drive.

In relation to charge 9, PW's daily driving hours were recorded on national driver work diary daily sheets. At 10.40 pm Western Standard Time on 18 February, PW's truck was observed during the Northam operation by a Main Roads employee. After several formal requests by WorkSafe dated 13 March, 1 May and 27 October 2015, no record has been provided of PW's work time, breaks from driving and non-work time for 18 February. When asked why no record had been kept for PW's driving on this day, Mr Greg Miles, who had been given authority to speak on behalf of the accused, stated that the records may have been misfiled.

32 The facts in relation to charges 10 to 11 may be summarised as follows. The driver in each instance was DM. His daily driving hours were recorded on both national driver work diary daily sheets and Western Australian fatigue sheets. In each instance, he was driving between the respondent's depot (referred to by the prosecutor as 'headquarters') in Welshpool and Eucla. He drove for periods that were longer than 17 hours without taking a break of seven consecutive hours.

33 In relation to charge 10, DM's diary sheets showed that he worked between 8.00 pm on 13 January and 2.30 pm on 14 January, a period of 18.5 hours, during which he took a total of three hours of breaks.

34 In relation to charge 11, DM's diary sheets showed he worked between 8.30 pm on 20 January 2015 and 3.00 pm on 21 January 2015, again a period of 18.5 hours, during which he took a total of three hours of breaks.

35 In relation to charge 12, DM's diary sheets showed he worked between 4.00 pm on 3 February 2015 and 11.00 am on 4 February 2015, a period of 19 hours, during which he took a total of three hours of breaks.

36 In relation to charge 13, DM's diary sheets showed he worked between 4.30 pm on 10 February 2015 and 11.00 am on 11 February, a period of 18.5 hours, during which he took a total of three hours of breaks.

37 In relation to charge 14, DM's diary sheets showed he worked between 9.15 am on 21 February 2015 and 3.00 am on 22 February 2015, a period of 17.75 hours, during which he took a total of 2.25 hours of breaks.

38 Finally, in relation to charge 15, DM's diary sheets showed he worked between 3.30 pm on 24 February 2015 and 10.00 am on 25 February 2015, a period of 18.5 hours, during which he took a total of three hours of breaks.

39 The magistrate had the benefit of detailed written submissions from the prosecution and the defence, and additional materials relied on by the parties that were filed with those submissions.

1. a table of first instance sentencing decisions for offences under reg 1.131 and reg 1.134 from 2004 to 2012;
2. the Western Australian Code of Practice Fatigue Management for Commercial Vehicle Drivers published by the Commission for Occupational Safety and Health in 2004 and available on the WorkSafe website;
3. a bundle of improvement notices and a prohibition notice that had been issued to the respondent or its drivers by the Department of Consumer and Employment Protection from 7 May 2004 to 20 December 2004, and in 2009, 2011 and 2012 requiring the implementation of a fatigue management plan and systems to ensure proper record-keeping in respect of drivers' work hours, and, in the case of the prohibition notice, requiring the respondent to ensure its drivers complied with the 17-hour rule (reg 3.132) as far as is practicable;
4. transcript of the sentencing proceedings before Magistrate Roberts on 7 January 2015;
5. the Fatigue Management Plan implemented by the respondent, revised as at January 2016;
6. the respondent's Fatigue Management Policy, revised as at 1 July 2015;
7. a Fatigue Management Awareness Training for WA Drivers document, accompanied by a table of signatures of 31 drivers from February to May 2016 confirming in each case that the driver had read the information provided by the respondent and had an opportunity to ask questions relating to fatigue management in Western Australia, and that the driver understood his responsibilities; and
8. a statement from the respondent on how it checked work diary pages for compliance, attaching samples of the national work diary daily sheets.

41 All of those materials were included in the appeal book in these proceedings.

42 On 7 January 2015, the respondent was convicted on its pleas of guilty of four counts of contravening reg 3.134, by failing to ensure that current records of work hours were kept by certain drivers, and 21 counts of contravening reg 3.131, by failing to ensure certain drivers complied with reg 3.132 (the 17hour rule). The offences were committed from October 2011 to May 2012. Although improvement notices and a prohibition notice had been issued to the respondent in the past, the respondent came to be dealt with as a first offender.

43 Magistrate Roberts, who dealt with the respondent on that occasion, noted the need for both personal and general deterrence, and, in particular, that penalties needed to be sufficiently severe to prevent the perception that fines could be treated as an operational expense if a commercial advantage was to be gained by not complying with the regulations. However, his Honour accepted that the offending was not deliberate or reflective of a commercial arrangement. He noted there was no evidence of 'a company policy to encourage drivers to breach regulations or in the setting of job targets relating to hours, time penalties or the like'.[8] He also took into account, by way of mitigation, that, since the prosecution had begun, the respondent had put into place operating systems to ensure compliance. Finally, he noted that no death or accident had occurred as a result of the noncompliance, although there was the potential for such consequences if a driver had been sufficiently fatigued to fall asleep.

44 Magistrate Roberts imposed a global fine of $2,000 for the offences under reg 3.134 and a global fine of $21,000 for the offences under reg 3.131. As will appear below, the magistrate in the present matter appears to have had regard to the penalties imposed on 7 January 2015 in determining the appropriate penalties for the offences the subject of this appeal.

45 In his sentencing remarks, the magistrate took into account a number of matters put on behalf of the respondent in mitigation. He also said that he accepted 'essentially' the submissions made by the prosecutor, although he did not elaborate what essential aspects he accepted.[9] It is appropriate, therefore to outline those submissions.

46 The prosecutor highlighted four points. The first concerned the rationale and objects of the 'fatigue laws'. The essential points in that regard were:

1. Fatigue management regulations exist in order to protect commercial drivers, but also other road users and members of the community.
2. The nature of the industry encourages drivers to attempt to meet deadlines and take on more jobs than they can safely complete. That temptation can lead to the situation where exhausted drivers are in command of large, heavy commercial vehicles and are responsible for driving those vehicles not only regionally but through residential suburbs in and around the Perth metropolitan area.
3. The Regulations impose several layers of regulation to protect drivers and the community against the potential serious harm that can result from heavy commercial vehicles being driven by exhausted drivers. The duty of employers to ensure current records are kept by drivers is one such layer. There are then a number of 'layers' concerning the number of hours for which such vehicles may be driven without breaks and the duration of breaks that must be taken.
4. The 17-hour rule was based on statistics from the Road Safety Authority, and that studies conducted in 2004 showed that '17 hours awake leads to performance similar to that of a person with a blood alcohol content of 0.05 per cent and that 20 to 25 hours awake leads to performance similar to a blood alcohol content of 0.1 per cent'.[10]
5. National regulations resulting from a review of laws concerning fatigue management for drivers of heavy vehicles had come into effect in February 2014. They are not in force in Western Australia, but were adopted in South Australia, where the respondent is required to comply with stricter requirements, limiting to 14 hours the number of hours of work before a driver is required to take seven consecutive hours of rest. Any time worked over 15 hours is regarded as a 'critical risk breach' under that regime. The stricter regime should have served to emphasise for the respondent the seriousness of the risk of its drivers failing to comply with the 17-hour rule.

47 The second point made by the prosecutor was that the approach taken in the respondent's submissions tended to perpetuate a theme from the proceedings in January 2015 for the prior offences, namely that the breaches of the 17hour rule tended to occur because drivers felt they could drive effectively with shorter periods of rest than was mandated, and were averse to stopping for long periods at rest stops 'in the middle of nowhere'. She noted that the 'work hours' provisions applied 'so far as is practicable', which allowed some flexibility where it might be necessary for the driver to continue for a reasonable period to reach a roadhouse, for instance, so they would not be 'in the middle of nowhere'. She submitted that it was simply a matter of organisation by the respondent, taking measures such as scheduling rest-breaks, booking accommodation and providing a timetable for its drivers.

48 The third submission made by the prosecutor was that the respondent's approach in its submissions tended to place responsibility for the breaches with the drivers, suggesting there was not a lot the respondent could do about the information put in the timesheets by the individual drivers. The prosecutor submitted that the court should reject that approach, because:

1. it is a principle of the law of Occupational Safety and Health that a responsible person cannot delegate their duty, and certainly not to an employee to whom they owe the duty; and
2. the respondent had demonstrated it had the capacity to check work diaries for compliance and accuracy, as evidenced by the statement it provided to the court about how it checked work diaries.

49 The prosecutor submitted that the respondent had the means to know when a driver left the Western Australian depot and when he arrived at the South Australian depot and vice versa. It also knew when a driver was refuelling and when he was dropping off his trailer. It also knew how long it takes a driver to drive between South Australia and Western Australia with the required legal breaks.

50 The prosecutor submitted that the respondent could easily have checked the accuracy of its drivers' records. Further, she submitted that the nine breaches of reg 3.134(1) were so widespread that they demonstrated either:[11]

an active attempt by the accused to avoid prosecution for failing to comply with required breaks or, alternatively, ... a negligent failure by the accused to implement a proper system to check the accuracy of records.

The magistrate's remarks reveal that he did not accept the respondent had acted deliberately to avoid the consequences of non-compliance with the Regulations. However, the general tenor of his Honour's remarks, as will appear below, suggests that his Honour accepted that the respondent had failed to take reasonable steps, in a timely manner, to implement a proper system of checking after being charged with the earlier offences.

51 The prosecutor noted that the offences the subject of this appeal occurred after the respondent was sentenced for the prior offences in January 2015, and that one of the four drivers involved in the prior offences was involved in charge 4. She noted that on this occasion there were 10 drivers involved, compared to four previously. Whereas previously the bulk of the offending concerned noncompliance with the 17hour rule, the bulk of the offending on this occasion concerned the failure to maintain current records. She noted that the eight records that had been produced and were found to be inaccurate suggested (by false information) that there had been compliance with the 17hour rule. She submitted that this demonstrated the drivers knew what was required by the Regulations in terms of work-hours, and had learnt to create records that (inaccurately) showed compliance.

52 The prosecutor submitted that the system relies on a responsible person checking and enforcing the accuracy of the records, and that it was substantially more difficult for an enforcing agency to detect a breach and there is a safety concern if the proper maintenance of records was not enforced by the responsible person. It was significant that the false entries had the effect of understating, rather than overstating the hours driven. The gravamen of the offending was that, while the respondent may have issued a directive to its drivers about compliance with the Regulations after the proceedings in January 2015, it did not take active steps at that stage to ensure that the records kept by its drivers correctly reflected the actual hours driven by them.

53 The prosecutor submitted that, in terms of the need for specific deterrence, the court should have regard to the fact that, in addition to the prior convictions, the respondent and its employees had over a period of some 12 years been issued with eight improvement notices and six prohibition notices. She also pointed out that, despite assurances in the plea in mitigation on the last occasion that the respondent had overhauled its systems and that it was extremely unlikely to reoffend, the offences the subject of this appeal occurred soon after. She submitted that the penalties imposed by Magistrate Roberts had not achieved personal deterrence.

54 On behalf of the respondent, it was submitted at first instance that the respondent believed it had put procedures in place after the previous convictions to ensure that reoffending did not occur. It had sought to educate its drivers, and, as the prosecutor had submitted, it could be inferred from the records that the drivers knew 'they had to mark down that seven hour break after driving for 17 hours'.

55 Defence counsel said that the respondent did not resile from the submission that the drivers involved in the charges were 'doing it without their employer's knowledge and against the training that had been given to them'. Nevertheless, the respondent accepted responsibility and pleaded guilty at the first reasonable opportunity.

56 Counsel informed the court that, since January 2015, the respondent had employed a former WorkSafe inspector, Mr Rhodes (whose name in fact appeared on a number of the improvement notices as late as 2009), on a parttime basis to assist the respondent with compliance. His role was to inspect the records and ensure everything was being done for the respondent to comply with its obligations. Counsel submitted that was a significant step and indicated that the respondent did take its obligations seriously and did not want to be in the same position again.

57 The magistrate was informed that it was now mandatory for drivers who were hauling freight from Adelaide to Perth to stop for refuelling in Ceduna and Norseman, which ensured that the respondent would know 'exactly where their drivers are at any given time and whether it matches up with their timesheets'. This had come at an expense for the respondent, because fuel was more expensive in those regional towns than it is in Perth or Adelaide.

58 The magistrate was also informed that the respondent had hired a number of new drivers so 'they can drive two up on the way, so they don't have to take the long breaks' and drivers would not be placed in the position of having to spend long periods in isolated locations in uncomfortable conditions.

59 In addition to the use of relief drivers, the respondent had over the previous four months implemented GPS tracking on some of its trucks, so it could know exactly where those trucks were at any given time.

60 Defence counsel submitted that these steps, which involved significant expense, demonstrated that the respondent had not been shirking its obligations since January 2015. He said that the changes were being put in place before that, but the respondent accepted that it had not done enough before the offending occurred. He submitted there was much that needed to be done by a company such as the respondent in order to comply with the Regulations, but the respondent accepted that the safety of the public was paramount and that 'driving [large haul freight] fatigued is an accident waiting to happen'. He accepted that every time a driver drove for over 17 hours without a seven hour break they were in a serious risk category.

61 However, he submitted the respondent had an 'impeccable safety record', having been in business for almost 40 years without a 'fatigue related accident of any kind'. Counsel acknowledged that one could not say whether that was the result of 'good luck or good management', but noted that the respondent had had a fatigue management policy in place even before the Regulations had come into force. He also submitted that the culture had changed from the past when 'drivers could almost do what they wanted'.

62 Defence counsel submitted that the gravamen of the offending for charges 1 to 9 was the respondent's failure to ensure adequately that the drivers complied with the training they had been given. He accepted it was obvious the respondent could have done more, because it had done a lot more since the offending, and it would be difficult now for a driver to falsify a record when there is GPS tracking in place and four check stops from Adelaide to Perth that can be monitored.

63 The magistrate was informed that three of the drivers involved in the recordkeeping offences were no longer employed by the respondent, because they would not comply with the changes put in place. The magistrate was also informed that there were four drivers on final written warnings from the respondent that they would be dismissed if they did not comply. One of them was DM, who was involved in the 'work hours' offences. In relation to DM, defence counsel said that he was 'not far off being terminated', the implication being he would be terminated 'if he breaches any of these rules again'.[12] Counsel submitted that 'the decisions [DM] made to drive was against the policy of the company to drive in the way that he did'.[13]

64 Defence counsel submitted that the only commercial advantage the respondent obtained was from not dismissing the drivers who did not comply with their obligations and keeping them working, rather than trying to find new drivers, which was difficult to do. He submitted that the timesheets did not support a conclusion that the breaches had resulted in more work being done, and a commercial advantage being obtained by the respondent in that way.

65 Counsel submitted that in the past the respondent had not appreciated the significance of improvement notices. He acknowledged its attitude had been that if nothing happens one simply moves on. However, he submitted that the respondent now appreciated that, if it receives such a notice now, it is likely to result in a further prosecution and a significant fine. He informed the court that the fine of $23,000 that had been imposed in January 2015 was significant for the respondent. It was not something it could easily afford and was 'far beyond an operating expense'.

66 In short, defence counsel submitted to the magistrate that, although this was a 'second conviction in a short amount of time', the respondent had made significant changes and had demonstrated it was taking its obligations seriously. It could not afford to keep coming back to court as an operating cost. Finally, no actual accident had occurred, although the respondent accepted it was one waiting to happen if the breaches persisted. They were unlikely to persist, given the measures that had been taken.

67 I note that, although a submission was made about the significance (in financial terms) of the fine that had been imposed in January 2015, no information was provided to the magistrate concerning the respondent's financial circumstances or the financial benefits obtained from the freight trips that were the subject of the offences.

68 The magistrate made detailed sentencing remarks.

69 It is evident from his Honour's remarks that he was cognisant of the seriousness with which breaches of the relevant regulations are regarded by Parliament, by reference to the maximum penalties, and by the courts, and of the need for the sentence to reflect that seriousness. It is also evident that he regarded the particular offending under consideration to be of a particularly serious kind. He rejected any suggestion that the offences he was dealing with, and those of which the respondent was convicted in January 2015, were technical breaches or insignificant.

70 His Honour pointed out that road safety was of the 'highest importance from the community's point of view'. He said:

It is an ongoing and persistent concern for the community that there are accidents and tragedies on the roads that could be avoided and, in that sense, driver fatigue, record keeping, occupational health and safety, all those layers of regulation and compliance are directed to one thing and that is for road safety.

71 His Honour adopted remarks made by Magistrate Roberts when sentencing the respondent in January 2015, that there was a recognised need in the long distance trucking industry that drivers have sufficient rest breaks and that:

To do otherwise is to risk the safety of the truck drivers themselves and other innocent road users. Big rigs of over 30 tonnes can do massive damage if involved in crashes.

72 His Honour identified the need to give effect to general deterrence. In the context of a regulatory duty imposed on an employer to ensure drivers comply with restrictions in their work hours, the sentence would need to demonstrate that significant financial consequences would result from a failure to perform that duty. The effect of deterrence in such circumstances is to motivate compliance with the positive duty, as his Honour indicated in later remarks.

73 His Honour also emphasised the need for specific deterrence in the respondent's case, given its previous similar offending and that the offences with which he was dealing were committed within a short time after the respondent was sentenced for the previous offending, in January 2015.

74 However, his Honour accepted that, since that time, the respondent had implemented significant changes in order to ensure compliance with the Regulations. He accepted that, to some extent, there may have been an 'underappreciation' of 'how much the culture needed to change as much as the technical compliance'. Although his Honour emphasised that it was not appropriate for the respondent to blame the drivers (which he appears to have accepted had been the tenor of submissions in the earlier proceedings), he accepted that it was not easy to get drivers to change 'in the way that was required', and he accepted that drivers were 'not under the gaze of the directors at all times'. However, he was of the view that the lack of constant supervision, because of the nature of the work, demonstrated the importance of the steps that needed to be taken by the company to reflect the expectations inherent in the Regulations, and the penalties that would attach to noncompliance.

75 His Honour accepted there had been significant cost incurred by the respondent in implementing the changes and attending court. He accepted that the respondent now understood the seriousness of the offending. However, he was of the view that the changes should have been happening more quickly, because it was approaching two years from the time the respondent was sentenced for the earlier offences.

76 Although his Honour accepted there had been no direct hazard from the respondent's failure to ensure that current records were maintained, he took into account that there is a 'knock on effect' from a failure to keep proper records, in that it leads to other offending (such as the breaches of the 17hour rule), or at least to such other offending being more difficult to detect. In that regard, his Honour was satisfied that such offending does lead to a hazard on the roads. He rejected any suggestion that the record-keeping breaches were just 'an accounting or clerical exercise'. As His Honour put it:

All of those layers of requirements are intended to ensure, to the best that rules and regulations can, that the roads will be as safe as possible.

77 His Honour considered the respondent's prior offending to be of concern. While recognising that such offending did not make the present offences more serious, his Honour considered it to be of concern that the offences for which he was sentencing the respondent were committed so soon after the respondent had been dealt with in court in January 2015 for similar offending (albeit 21 of the 25 convictions were for 'rest break' offences). This indicated to his Honour that the 'penny hadn't dropped' for the respondent in terms of the seriousness of the offending. The two possibilities were that the changes the respondent had sought to put in place had not yet had a chance to be implemented, or the respondent had been defiant. His Honour considered that the situation was 'somewhere in between the two', in that some drivers had been resistant and were taking more time than they should to realise the changes that had to be made.

78 His Honour accepted that the offending was not driven by a desire to gain a commercial advantage, but he did not completely accept defence counsel's submission that there was no commercial advantage to the respondent. As His Honour noted, the fact that drivers were on the road more often than they were permitted to be meant that more work was done and more income was generated for the company. His Honour was drawing an inference as a matter of common sense, as there was no evidence as to the income generated or what might have been expected if the regulations had been complied with.

79 His Honour considered that, ideally, all of the respondent's vehicles and trailers would have GPS tracking, but he accepted there are costs associated with that. In any event, his Honour noted:

But that, with the training and the compulsory fuel stops and the fuel card which can directly prove what the drivers are doing, they do demonstrate that the company is doing something significant on this occasion, at least, about making sure that the offending stops and from the community's point of view, that's what I want the outcome of sentencing to be today.

80 His Honour also acknowledged that the respondent's pleas of guilty were a significant factor for which it would receive credit, given the savings to the court and the prosecution. He also had regard to what he considered to be the respondent's 'sincere appreciation' that it had to change, and to the fact that it was making changes. This could properly be regarded as a finding by his Honour that the respondent had demonstrated genuine remorse.

81 His Honour noted that, although the respondent had been issued with improvement notices before the offending for which it was sentenced in January 2015, it came to be sentenced as a first offender at that time, and 'for the most part, the record of the company until January 2015 had been exemplary'. However, he did not accept that the offending did not create a risk, and noted that the fact that the breaches had not resulted in any catastrophes may well have been the result of good fortune.

82 His Honour noted the fines that had been imposed on the previous occasion. It appears, from what he said subsequently when imposing fines, that the previous penalties had some bearing on his determination of appropriate penalties in this case. It also appears that his Honour approached the previous global penalties as if they could be divided to reflect individual penalties for individual offences.

83 While it is not an issue that arises directly on this appeal, it is worth noting that such an approach overlooks the purpose of a global fine, which is to impose a single fine for two or more offences founded on the same facts or forming a series of offences of the same or a similar kind. In my opinion, such a fine is intended to reflect the seriousness of the course of conduct (which may increase as offending persists), while at the same time avoiding double punishment for common aspects of the individual offences and giving effect to the totality principle. Unlike the approach taken by the learned magistrate in this case, as will appear below, Magistrate Roberts on the previous occasion did not identify individual fines for the offences and accumulate them; rather he simply imposed a global fine for each group of offences. To divide those fines by the number of individual offences in each case is apt to create a wrong impression of the relative seriousness of each individual offence. Ultimately, however, the adequacy of the fines imposed in this case is not to be determined by a comparison with the penalties imposed in January 2015. Counsel for the respondent at the hearing of the appeal acknowledged that the earlier penalties may be regarded as being unduly lenient.

84 The magistrate in the present case recognised that the maximum penalty for subsequent offences in reg 1.16 demonstrated how seriously Parliament regarded breaches of this nature.

I accept, though, that because of the changes, the costs that have incurred, the desire to shift the culture of the company and to implement training and all those other things that have been commented on, that there has been a change, but at the same time I also accept, essentially, the submissions made by Ms Richardson on behalf of the prosecution today.

87 The learned magistrate then imposed fines and made remarks in respect of them as follows:[14]

For the record keeping offences, that's the nine offences, 1 to 9 today, it's a fine of $1000 in respect of each of those offences, which is double the fine on the previous occasion, $9000 for the total of those nine offences. For the offences 10 to 15, those six offences 10, 11, 12, 13, 14 and 15 is six offences where the fine previously had been $1000. Whilst I accept the penalty could be significantly more, there has (sic) been some costs incurred by the company in order to bring about the change that's necessary.

And whilst I haven't had specific detail of what those costs have been, including attending today, I accept that it wouldn't have been insignificant. What I would expect, though, is that those changes to the rigs to include the GPS tracking and on the trailers and the like, that should be a high priority to the company clearly, because it's that way that the company can ensure that they won't be in the same position again, hopefully. It's another layer of comfort.

But given that the offences occurred so soon after the offences that were sentenced in January 2015, it's the decision of the court today that the penalty in respect of those six offences, taking into account everything else that I've said today, including the costs incurred by the company, should be a fine of $3000 for each of those offences which is a total of $18,000, for an overall total fine of $27,000 and costs of $1335.60.

Now, that, in the context of a small, private company is a significant amount of money. It would have been and I can make it quite clear to the company today that, but for the changes that have been made, but for the keenness that has been demonstrated today by the changes and the fact that there hasn't been any new offending in a prosecution sense, the fines would have been substantially more today but for those changes.

88 By s 8 of the Criminal Appeals Act an appeal may be brought in the Supreme Court against a sentence imposed by a magistrate on one or more of the following grounds, namely that the court of summary jurisdiction made an error of law or fact, that it imposed a sentence that was inadequate or excessive, or that there has been a miscarriage of justice. By s 14, the Supreme Court may, among other things, dismiss or allow the appeal, and may set aside the sentence and substitute a sentence that should have been imposed. Section 14(2) provides that even if a ground of appeal might be decided in favour of the appellant, the Supreme Court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.

89 Section 39(1) provides that the appeal court must decide the appeal on the evidence and material that were before the lower court. However, that general provision does not affect the power of an appeal court under s 40 of the Criminal Appeals Act to admit other evidence on an appeal.[15] It is also subject to s 41(4), which allows an appeal court to have regard, in an appeal against sentence, to matters that have occurred between when the offender was convicted and when the appeal was heard, but neither of those provisions were invoked in this case.

90 In this matter, the respondent tendered, without objection, a letter dated 28 September 2016 from the respondent's solicitors to the Magistrate's Court informing the court that no directors of the corporation would be available for the sentencing date that had been set at that stage in October 2016. It was received into evidence as part of the information before the magistrate concerning the directors of the company. I have had regard to it as material relevant to deciding the appeal in respect of ground 1.

91 The respondent also tendered, without objection, an affidavit of the founding director of the respondent, Mr Frank Lenzi, sworn 24 May 2017 (Mr Lenzi's affidavit). However, that was tendered, and was received into evidence, on the basis that it would be relevant to resentencing, in the event that the appeal is allowed, rather than fresh or new evidence on which I should rely in deciding the appeal.[16] The affidavit sets out information concerning the respondent's history and financial circumstances for the 2015/2016 financial year, and compares its operations to those of other transport companies, both larger and comparable in size.

92 The appellant tendered, as an aid, a map of Australia that showed relevant locations between Adelaide and Perth which were driven through by the respondent's drivers, including locations referred to by those drivers in their diary sheets, as described in the outline of facts above. The point of the aid was to illustrate the significant difference in distance between Northam, where the driver's trucks were seen and recorded at relevant times, and the locations at which some of the drivers claimed to be in their diary sheets at those times.

93 In its written submissions filed before the hearing, the appellant relied on first instance decisions to indicate a range of fines that had been imposed for similar offences, both for first offending and subsequent offending, although the sample for the latter was very small.[17] That approach was taken because of the lack of appellate consideration of penalties under the relevant regulations in this State. During the hearing on 29 May 2017, I indicated that I would be assisted by further submissions addressing whether there are appellate decisions in other jurisdictions concerning appropriate levels of penalties for similar offences and, if not, what weight I should give to the first instance decisions of magistrates in this State. The appellant subsequently filed supplementary submissions on 19 June 2017 and the respondent filed a response on 29 June 2017.

94 Ground 1 alleges an error of fact. In order for the appeal to succeed on this ground, it is necessary for the alleged error to have been material to the outcome in the court below. If it was not material, there will have been no substantial miscarriage of justice.

95 The appellant contends that the magistrate erred in fact in 'finding the respondent was a small or family business'. The respondent contends that the magistrate did not make that finding. It contends that, to the extent that the magistrate appears to have made a finding, it was that the respondent was a 'small private company'. The respondent submits that the description used by the magistrate can be equated with 'small proprietary company', as defined in s 45A of the Corporations Act 2001 (Cth), and, although there was no direct evidence before the magistrate about the matters that would satisfy that definition, there was information from which the conclusion could be drawn that it was such a company.

96 At [9] and [87] above, I referred to the two passages in which the magistrate mentioned matters relevant to this ground. The formulation of the ground of appeal appears to relate to the first passage, in which his Honour said:[18]

I appreciate that any family business, if that's what it is, or small business, if that's what is, will find the fines difficult in the current circumstances, but the main point of the court insisting that is, my direction that a director attend today or when the sentencing took place, and it does seem to me that, with the number of people that are here today, that the principal concern that I had was for the safety of the community going forward, and that I wanted to ensure that that was a feature of the sentencing; that it was understood by Cleveland Freightlines, as I appreciate it is now, that this wasn't just a minor technical sense of not maintaining logbooks or whatever.

...

From the court's point of view, it was a concern a genuine concern for other road users and their safety, and including their own drivers. So we are here now, and I will incorporate all of those issues in the outcome ... (emphasis added).

97 The respondent submits that the words 'if that's what it is', in relation to whether the respondent's business was a 'family business' or a 'small business', clearly indicate that the magistrate had not formed a conclusion in respect of either proposition. Therefore, the respondent submits, it is wrong to assert he made a finding in respect of those matters. If the first sentence in the quoted passage is considered in isolation, the respondent's submission undoubtedly would be correct. However, the magistrate's indication that he would 'incorporate all of those issues in the outcome', taken with his comment towards the end of his remarks that the 'overall total fine of $27,000' he had imposed was a 'significant amount of money', 'in the context of a small, private company', suggests that his Honour proceeded on the basis that the respondent was a small company that was operating a small business. The respondent conceded that his Honour made a finding that it was a 'small private company',[19] but sought to distinguish that finding from the references to 'family business' and 'small business'. However, the correlation between his initial comment that he appreciated that any small business would 'find the fines difficult' and the subsequent comment that for a 'small private company' the total fine was a significant amount of money cannot be ignored.

98 Having regard to the whole of the magistrate's sentencing remarks, I am satisfied that his Honour did find the respondent's business to be a small business, at least in the sense that he proceeded on that factual basis. The next question is whether it was reasonably open to make such a finding (or to proceed on such a factual basis) on the material before his Honour.

99 There was no evidence before the magistrate about the size of the company or the business it operated. In its written submissions, the respondent referred to a number of items of information before the magistrate from which it submitted inferences could be drawn about the nature of the company, in particular that it was a 'small private company', and the size of the business.[20] Counsel also relied on those items at the hearing. It is sufficient to note that those items included information about the directors in the letter from the respondent's solicitors to the Magistrates Court; the fact that the respondent was a proprietary company limited by shares; the fact that the respondent had operated a long haul freight business for almost 40 years and operated primarily between Adelaide and Western Australia; the fact that it had depots in South Australia and Western Australia; counsel's submission that a significant fine was not something the respondent could easily afford; the number of driver's named in the charges and the number of additional drivers who had signed the respondent's fatigue management policy; and the fact that there was no evidence suggesting the respondent was a large proprietary company.

100 With respect, the submission that the absence of evidence to the contrary could support a finding that the respondent was a 'small private company' is unhelpful. As for the other items, I am not satisfied that the information provided a basis for concluding that the respondent operated a 'small business' or that it was a 'small private company'. It may be accepted that descriptions of that kind are relative, but there is still a need for some factual basis to support such conclusions. More particularly, the inference submitted on behalf of the respondent, that the respondent's business could be distinguished in size from 'other well-known nationwide road freight transport companies' is tenuous, in the absence of specific evidence. In any event, such a distinction would not determine the question of whether the magistrate's characterisation of the respondent was not open on the material before him.

101 As I noted earlier, the respondent's submission proceeded on the basis that the magistrate's terminology was consistent with the description 'small proprietary company' in s 45A of the Corporations Act. However, there is no suggestion in the magistrate's remarks that he was using 'small private company' in that way. The definition in the Corporations Act has a bearing on whether a corporation is required to lodge financial reports with the Australian Securities and Investments Commission.[21] That was not a matter of any relevance in the proceedings.

102 The context in which the magistrate referred to the size of the company and its business was his indication that he appreciated the respondent would 'find the fines difficult in the current circumstances' and that the overall total fine was a 'significant amount of money' for the respondent. His Honour did not elaborate on what he meant by 'the current circumstances'. In any event, there was no evidence before his Honour about the financial circumstances of the respondent. There was no evidence about the value of its assets (gross or net) or of its consolidated revenue in the previous financial year. The respondent relies on the fact that counsel for the respondent at first instance informed the magistrate that the penalty imposed when the respondent was convicted of the previous offences in January 2015 was 'a significant penalty to them',[22] and that any 'significant fine' from any further prosecution 'is not something that they can easily afford ... it's far beyond an operating expense'.[23]

103 The difficulty with relying on such a submission in a plea in mitigation is that it is so general as to provide little insight into the potential impact of a penalty on the respondent. As I will discuss later, in order to achieve the need for both general and personal deterrence, a fine for such offending must be such as to make noncompliance with regulations unprofitable. It must necessarily be well in excess of what might be regarded as an operating expense. If any meaningful assessment is to be made of the punitive measure of a fine on an offender in such a case, it is necessary for the court to have information about the offender's financial circumstances and, more specifically, the revenue obtained from each particular haul.

104 Section 53 of the Sentencing Act 1995 (WA) provides relevantly:

(1) Subject to Division 1 of Part 2, if a court decides to fine an offender then, in deciding the amount of the fine the court must, as far as is practicable, take into account

(a) the means of the offender; and

(b) the extent to which payment of the fine will burden the offender.

(2) A court may fine an offender even though it has been unable to find out about the matters in subsection (1).

The section contemplates that the court will enquire about the means of the offender and the extent to which payment of a fine will be a burden.

105 In my respectful opinion, a submission from counsel that a particular level of fine will be a 'significant penalty' and will be 'far beyond an operating expense' falls well short of the information a court would require to find out the offender's means and the extent to which payment of a fine would be a burden. Of course, one should not lose sight of the busy nature of the summary jurisdiction, which will often put constraints on the time available for such information to be made available. However, when, as in this case, specific time has been allocated for the sentencing, and written submissions and a large amount of documentary material has been provided to the sentencing court, one would expect that information about the offender's means would be sought by the court and would be included in the materials, particularly if a submission is made in mitigation that a penalty will be significant for the offender. That is especially so, it seems to me, when the court has expressed concerns about whether the offender appreciates the seriousness of the offending.

106 Ground 1, in its terms, does not allege that the magistrate made an erroneous finding about the respondent's capacity to pay a fine. However, if the magistrate made the error of fact alleged by the appellant, the ground would succeed if it materially affected the outcome. The issue is whether the magistrate's characterisation of the respondent's business as 'a small business' and of the respondent as a 'small private company' led to any finding about the respondent's capacity to pay a fine and the extent to which payment of any particular fine would burden the respondent. More specifically, did it result in the magistrate reducing the penalty he would otherwise have considered appropriate, having regard to the seriousness of the offending?

107 Counsel for the respondent conceded that the only manner in which findings about the size of the business or the company could have been relevant was in respect of the respondent's capacity to pay a fine. In fact, the respondent's submission was that:[24]

[t]he court's finding that the respondent was a small private company was clearly relevant to the assessment of the company's capacity to pay a fine and influenced the magistrate in calculating the total fine imposed.

With respect, while the first part of that concession may be accepted, the correctness of the second part is far from clear when one has regard to the passage in which his Honour used the description. It is convenient to reproduce the passage again. Having stated the total of the fines imposed, his Honour said:[25]

Now, that, in the context of a small, private company is a significant amount of money. It would have been and I can make it quite clear to the company today, that but for the changes that have been made, but for the keenness that has been demonstrated today by the changes and the fact that there hasn't been any new offending in a prosecution sense, the fines would have been substantially more today but for those changes.

108 In my opinion, his Honour's remarks disclose that the factors that resulted in a substantial reduction of the fines that would otherwise have been imposed by him were:

(1) the changes that the respondent had made to its operations, in terms of the implementation of better systems to monitor and ensure compliance by its drivers with the Regulations;

(2) the respondent's demonstrated 'keenness' to make change and ensure compliance; and

(3) the absence of further offending since the offences with which his Honour was dealing.

That is also abundantly clear from several paragraphs preceding the above passage.

109 His Honour included in his consideration of the matters in (1) and (2) the fact that the respondent had incurred costs which 'wouldn't have been insignificant' in implementing the changes and in attending court. However, his Honour did not find that the respondent would not have been capable of paying fines that were 'substantially more', which he said would have been imposed if the specific mitigating factors he identified had not been present.

110 His Honour's comment that the total amount of the fines was a significant amount of money for the respondent no doubt indicates that he thought the fines would be a significant burden on the respondent, having regard to his understanding of the nature and size of the company. Whether or not that was correct, it does not follow that it materially affected his determination of the appropriate fines. In context, it appears to me that the comment was intended to impress on the respondent that, as burdensome as the fines might be, the penalty would have been more substantial if the respondent had not made changes and demonstrated its resolve to comply with the Regulations.

111 In my opinion, on the basis of the information before him, it was not reasonably open to the magistrate to find that the respondent's business was a small business or that it was a small private company. However, I am not satisfied that the error materially affected the sentence imposed by the magistrate. In my opinion, no substantial miscarriage of justice resulted from the error. Therefore, while I would grant leave in respect of ground 1, in that the ground had a reasonable prospect of success, I would dismiss the appeal insofar as it relies on that ground.

Ground 2: Manifest Inadequacy Principles governing this ground of appeal

112 The principles governing an appeal against sentence are well established. An appellate court can only interfere with the exercise of the sentencing discretion if the appellant demonstrates that the sentencing judge or magistrate erred in exercising that discretion.[26] Such error can be express or implied, but, it is not for the appellate court to interfere with the sentence imposed merely because it is of the view that the sentence is insufficient or excessive, unless satisfied that a different sentence should have been imposed due to the demonstrated error.[27]

113 A claim that a sentence is manifestly inadequate rests on implied error. It requires the court to be satisfied that the sentence is unreasonable or plainly unjust.[28] The following formulation of the test by E M Heenan J in Goddard v City of Stirling (Goddard)[29] is apt for present purposes:[30]

It is well-established that if there is such a manifest disproportion between a penalty imposed and any penalty which might reasonably be regarded as being imposed in the circumstances, then that disproportion of itself constitutes error and may also connote some undisclosed or unmentioned error in the course of reasoning ...

114 It is necessary to review the sentence having regard to the maximum penalty available, the standards of sentencing customarily observed in relation to offences of this character, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, the personal circumstances and antecedents of the offender, and all aggravating and mitigating circumstances.[31]

115 A helpful outline of principles and guidelines that apply in sentencing for offences in the area of occupational health and safety is to be found in the sentencing remarks of McKechnie J in BHP Billiton Iron Ore Pty Ltd v Capon[32] (BHP Billiton) when he was required to resentence the appellant after allowing an appeal against conviction, which resulted in the substitution of a conviction for a lesser offence under the provisions of the Mines Safety and Inspection Act 1994 (WA). The offending was of an analogous kind, and both parties submitted that the principles and guidelines outlined by his Honour were applicable in a case of this kind. I agree.

116 In BHP Billiton at [7], McKechnie J said:[33]

The provisions of the Mines Safety and Inspection Act and the Occupational Safety and Health Act 1984 (WA) are closely aligned as to sentencing principles and guidelines, so I have drawn on cases under the Occupational Safety and Health Act in formulating a list of general principles and guidelines. These are of general applicability and are not exhaustive ...

117 In a footnote, his Honour indicated that the principles were distilled from the Sentencing Act and from numerous decisions of the Supreme Court of Western Australia, as well as a decision of the Victorian Supreme Court of Appeal, all of which he cited. It is not necessary to cite them here.

118 The principles and guidelines distilled by McKechnie J in BHP Billiton consist of statements of principle and matters to be taken into account. They are:[34]

1. A sentence imposed on an offender must be commensurate with the seriousness of the offence;
2. The seriousness of an offence must be determined by taking into account:

1. the statutory penalty for the offence; and 2. the circumstances of the commission of the offence, including the

1. vulnerability of any victim of the offence; and

1. Because of the infinite possibility as to the circumstances of a breach of duty, there is no tariff for offences, but an appropriate level of consistency with other fines should be maintained;
2. The legislation should have a deterrent effect requiring employers to take appropriate steps to provide a safe working environment;
3. The legislation is designed to bring home the consequences of failing to comply with necessary and prudent occupational health and safety requirements in the workplace;
4. Whether a fine should be imposed for principles of general deterrence;
5. Whether the offending employer has pleaded guilty and at what stage in the proceedings;
6. The absence of a plea of guilty does not aggravate the offence;
7. Whether the event demonstrates a course of conduct or whether it is a single event where safety instructions are overlooked;
8. Whether safety instructions were overlooked because of a failure to supervise over time;
9. The nature of the risk and the serious harm that might flow from a breach of the employer's duty;
10. The severity of the lack of care or other criminal conduct;
11. Whether there was a knowing acceptance of danger for commercial reasons or convenience;
12. Whether the employer has taken measures following the event to prevent a recurrence;
13. The employer's general safety record;
14. The employer's 'good character' sometimes demonstrated by its actions as a corporate citizen; and
15. Whether there is a need for personal deterrence.

119 In the context of prosecutions under reg 3.134(1) and reg 3.131(1)(a) of the Regulations, the nature of the risk and the serious harm that might flow from a breach of the employer's duty includes the risk and potential serious harm to other road users and members of the community. As the magistrate properly observed, the consequences of a crash resulting from a driver of a road train being fatigued can be catastrophic.

120 In addition to the general principles and guidelines, I note that McKechnie J, in deciding on the appropriate penalty in BHP Billiton, adopted the following proposition at [21]:

Subject to any adjustment which is necessary after applying s 53, it is appropriate to set a penalty for a breach of general employer duties under the Mines Safety and Inspection Act and the Occupational Health & Safety Act by reference to a percentage of the maximum penalty, having regard to the circumstances of the offence and all aggravating and mitigating factors.

121 That was the approach taken by both parties in their submissions on the appeal in identifying a range of appropriate fines for similar offending. Such an approach is commonly taken in appeals from sentences in cases involving regulatory prosecutions, whether in the context of occupational health and safety or other contexts, such as breaches of planning or building laws. It is a convenient way to identify the standards of sentencing customarily imposed by comparison with other cases. However, in my opinion, comparisons by reference to percentages of the maximum penalty must be approached with caution for at least two reasons.

122 First, as McKechnie J indicated in his outline of the principles and guidelines, there is no tariff for offences of this kind. What is necessary is to endeavour to maintain an appropriate level of consistency with penalties imposed in other cases. As E M Heenan J put it in Goddard,[35] 'it is necessary to bear in mind constantly that sentencing is a matter of discretion, that no case is exactly similar', but it is desirable that 'there be a general proportionality and consistency in sentencing for offences of like kind'. The object of comparison with other cases is to ensure broad consistency.[36] If it is possible to identify the range of sentences customarily imposed for a particular kind of offending, it will provide a yardstick, but it does not mark the boundaries within which the sentencing discretion is to be exercised.[37]

123 Secondly, it seems to me that the identification of an appropriate penalty for an offence by reference to a percentage of the maximum penalty would be more apt if one were determining the objective seriousness of the offence, before allowing for mitigating factors, rather than after all discretionary matters have been taken into account.[38] That is not to say that the appropriate penalty after allowing for such factors cannot be expressed as a percentage of the maximum (as it would appear McKechnie J had in mind in BHP Billiton and might be expected from the 'instinctive synthesis' approach to sentencing[39]), but the utility of comparison with other cases on that basis is problematic unless all relevant factors concerning the offending and the personal circumstances of the offender in the other cases are known.

124 Nevertheless, for the purpose of comparison with other cases of a broadly similar nature, in particular where the maximum penalty may be different, consideration of the relative penalties as a percentage of the maximum in each case may provide some indication of whether a particular sentence is manifestly excessive or inadequate.

125 The respondent concedes that the fines imposed in this case appear to be too low.[40] In its written submissions it acknowledged in respect of the reg 3.134 offences that:[41]

it is difficult to maintain that the fines imposed on the respondent reflected the seriousness of the offending and standards of sentencing customarily observed or which should be observed.

In respect of the reg 3.131(1) offences, it submitted that:[42]

the fine imposed is closer to but still substantially below the minimum amount imposed in the Magistrates Court for subsequent offences in other matters.

As will appear, those concessions were properly made, although the respondent did not in terms concede the appeal, because of the lack of relevant appellate authority.

126 The appellant does not complain about any of the findings made by the magistrate or the matters he took into account in sentencing the respondent. His sentencing remarks show he had regard to all relevant matters. The respondent does submit that some of the mitigating factors referred to by his Honour should carry little weight in assessing the adequacy of the fines imposed, but it does not submit they are irrelevant. It is necessary, therefore, to consider the adequacy of the fines on the basis of the findings made by his Honour, as set out above. As I have already noted, those findings included an acceptance of submissions made by the prosecutor at first instance, at least to the extent I have outlined at [45] above.

127 The first consideration in determining the adequacy of the fines is the statutory penalty for the offences.

128 The maximum penalty for a 'subsequent offence' under each of reg 3.131 and reg 3.134 is $62,500.[43] The respondent was liable to that penalty upon conviction for each of the offences.[44] Therefore, it was liable to a total maximum penalty for the totality of the 15 offences of $937,500.

129 The global fine of $9,000 for the 9 recordkeeping offences was, therefore, 1.6% of the maximum penalty available for those offences. The global fine of $18,000 for the 6 'work hours' offences was 4.8% of the maximum penalty available for those offences.

130 Next, it is necessary to consider where the offending falls on the scale of seriousness for such offending.

131 There is no doubt that the offending was serious, as the learned magistrate found. That is accepted by the respondent.

132 The duties imposed by the Regulations on an employer in the respondent's circumstances are onerous, but they are necessary to ensure that adequate protection is provided to commercial vehicle drivers and other road users and members of the community from the dangers inherent in the commercial enterprise operated by such an employer. In undertaking such an enterprise, it was incumbent on the respondent to comply with its obligations under the Regulations. The potential for death or serious injury if a heavy haulage vehicle is involved in an accident is obvious. It was not in dispute at first instance or on appeal that such accidents are notoriously linked to driver fatigue when vehicles are driven for long periods; the materials before the magistrate supported that conclusion. The risk of fatigue in long hauls, especially from Adelaide to Perth, is significant, especially if drivers feel constrained to meet deadlines or simply do not want to endure long periods of inactivity in remote areas. Clearly, the limits on work hours and the obligation to maintain accurate records of those hours are the means by which Parliament, through the Regulations, has sought to safeguard drivers and other members of the community from the dangers of fatigue.

133 The magistrate did not find that the respondent encouraged its drivers to flout the Regulations, nor that it deliberately ignored its obligations for commercial benefit. Had those factors been present, they would have been significant aggravating factors.

135 First, the offending could properly be described as involving non-compliance that was widespread, involving a large number of drivers.

136 Secondly, as the prosecutor submitted at first instance, the consistent pattern of the drivers' records was that they understated the number of hours they were driving over any particular period, so that the increased risk of fatigue was being concealed. The respondent's counsel on the appeal quite frankly conceded:[45]

The record-keeping breaches lead to 17-hour breaches quite often, because it's the drivers filling out their paperwork to make it look that they are not driving for as long as they in fact are.

137 Thirdly, the offending occurred against a background of prohibition and improvement notices over a period of many years and soon after convictions for similar offending. It is not to the point that changes the respondent was seeking to implement may not have had sufficient time to take effect by the time the offences occurred in January and February of 2015. That begs the question of why the respondent had not commenced to implement changes well before then, at least from the time it was charged with the earlier offences. On the appeal, the respondent's counsel acknowledged that the respondent took the matter seriously and began to implement steps after the convictions in January 2015.[46]

138 The offending demonstrated a failure by the respondent, for a significant period of time, to acknowledge the seriousness of its noncompliance with the Regulations and the risks that were being created as a result of that noncompliance.

139 On each occasion that the respondent failed in its duty, a driver was potentially driving while fatigued, and other road users and members of the public sharing the road with that driver, or in the vicinity, were put at risk of serious harm or worse. That was particularly so in respect of the offences under reg 3.131(1), involving the breach of the 17hour rule, but it was also potentially the case in the instances when timesheets inaccurately recorded work hours, as they invariably understated the hours the driver had been on the road.

140 The appellant submitted, as it did at first instance, that the respondent could have taken a number of practical measures to ensure compliance with the 17hour rule, such as scheduling overnight accommodation for the drivers. The respondent submitted that the argument was misconceived, because that is 'not how it works'. It submitted that the schedules provided by the respondent allowed for drivers to do the job within time, and the vehicles were 'sleeper trucks', so there was no need for drivers to be accommodated in units. The respondent reiterated the submission made to the magistrate, that the breaches of the 17hour rule would occur in circumstances where the driver found himself one to one and a half hours from a depot when the 17 hours expired, perhaps because of some intervening event that had thrown the schedule out, and found it impractical to stop for seven hours at that stage. The respondent submitted that the number of hours driven by DM, as disclosed by his timesheets, tended to confirm that explanation. However, as the appellant submitted at first instance, and in response on appeal, the Regulations provide that the prescribed hours are to be complied with 'so far as is practicable'. If there was a genuine explanation of impracticability, the respondent would have had a defence. The respondent's pleas of guilty belie any reliance on such an explanation as a factor bearing on the seriousness of the offending or as mitigation. I agree.

141 In my opinion, the changes the respondent has implemented since January 2015 demonstrate that the breaches should never have been tolerated and were always preventable. The magistrate accepted that the drivers could not always be under management's gaze, but that was always known, and it made all the more urgent the need for changes to be made when non-compliance by drivers came to the respondent's attention.

142 The respondent submitted that, in assessing the seriousness of the offending, it is relevant to have regard to the relatively limited period within which the offending occurred, in particular the record-keeping offences under reg 3.134. The appellant submitted that the timeframe is explained by the fact that those offences were detected during the Northam operation, which was conducted for a limited period. That may be so, but any implication that the offences could be regarded as representative of wider offending must be rejected. The Northam operation was not the only means by which the regulatory authority was able to detect breaches, as was illustrated by the charges dealt with in January 2015. If the authority chose not to investigate further (for instance, by requiring the production of records) to see whether there was longerstanding or widerspread offending, the appellant cannot now be heard to make a submission that the extent of the offending may have been greater than the timeframe indicates.

143 However, the timeframe for all of the offending, from 13 January 2015 to 25 February 2015, was not insignificant, and the extent of the offending, of course, encompasses the number of drivers. As I stated earlier, the offending can properly be regarded as involving noncompliance that was widespread.

144 The appellant submitted that the court should have regard to the fact that under the national regulations (adopted in South Australia, but not in Western Australia) any time worked over 15 hours is categorised as a 'critical risk breach'. The respondent submitted that it is not appropriate to have regard to a system of categorisation that is not applicable in this State. I agree. However, there could be no doubt, having regard to the materials before the magistrate, that driving for more than 17 hours without a break of seven consecutive hours gave rise to a risk of a very high order. The respondent did not argue otherwise. Further, as I noted earlier, the stricter regime by which the respondent was bound in South Australia should have served to emphasise for the respondent the seriousness of the risk of its drivers failing to comply with the 17hour rule.

145 It is finally necessary to say something about the relative seriousness of the recordkeeping offences compared to the 'work hours' offences. The appellant accepted that the latter may be regarded generally as more serious, but submitted that in the context of this case, the recordkeeping offences were particularly serious, for the reasons I have already outlined, so that the proportional difference between the penalties for them should not be as significant as the fines indicate. In my opinion, that submission should be accepted. I note again that the respondent conceded that the record-keeping breaches lead to 17hour breaches quite often, which serves to emphasise the seriousness of the reg 3.134 offences in this case. Although there is no ground alleging specific error in the proportional difference between the global fines for the two different categories of offending, it seems to me that proportionality in the manner I have discussed is a relevant factor when considering the adequacy of the fine imposed for the reg 3.134 offences.

146 In terms of the aggravating factors referred to in BHP Billiton, the offending involved a course of conduct, a failure to supervise over time and a significant degree of lack of care.

147 The mitigating factors relied on by the respondent are outlined in sufficient detail in my summary of the plea in mitigation at [54] [67] above. The same matters were relied on in the appeal.

148 The particular factors referred to in BHP Billiton that are relevant in this case are the respondent's pleas of guilty, the fact that the respondent has taken measures following the event to prevent a recurrence, and the respondent's general safety record. As to the respondent's 'character' as a corporate citizen, there was no information before the magistrate about the respondent's conduct beyond matters directly relevant to its compliance with the Regulations. However, given the history of improvement and prohibition notices and the prior convictions, it could not be said that the respondent came to the court with good character capable of mitigating the offending or the penalty that should be imposed.

149 It would appear the magistrate accepted defence counsel's submission that the pleas of guilty were entered at the first reasonable opportunity. No issue was taken with that submission, and I will proceed on the basis that the respondent should have the benefit of an early plea. The pleas of guilty resulted in savings to the appellant and the administration of justice. Further, as the magistrate appears to have accepted, in the circumstances of this case they demonstrated genuine remorse on the part of the directors of the respondent. The respondent was, for those reasons, entitled to a meaningful reduction of the fines that might otherwise have been appropriate. The extent of that reduction would be tempered by the fact that the case against the respondent appears to have been strong, and to some extent the pleas may reflect a recognition of the inevitable.

150 The measures that the respondent had taken to change the culture concerning compliance with the Regulations were significant. As is obvious from the magistrate's sentencing remarks, the fines he imposed were 'substantially' less than they would have been if the respondent had not taken those measures and demonstrated its resolve to comply in future. Of course, that does not mean that his Honour undertook a mathematical exercise of arriving at a figure that otherwise would have been appropriate and reducing it for the mitigating factors. He was not required to do so. The point is that his Honour clearly gave significant weight to the measures the respondent had taken and its demonstrated attitude.

151 While not relying on any ground of specific error, the appellant submits that the weight to be given to the subsequent remedial measures taken by the respondent should not be significant. Counsel for the appellant submitted that, where an employer contravenes legislation of this kind 'in the usual course of their operations', that reduces the mitigatory effect of such subsequent measures. Counsel relied on the decision of Murray J in Morrison v Competitive Foods Ltd t/a Hungry Jacks.[47] In my opinion, his Honour's comments do not stand for a general proposition of the kind for which the appellant contends. The approach was apt in the circumstances of that case, which involved the adoption of a dangerous method of cleaning a cooker over a period of time with the knowledge of the local manager, although not known to higher level management. The proposition may well be apt generally, but in my opinion each case will need to be considered in the context of its own facts.

152 In the present case, the measures taken by the respondent included the implementation of GPS tracking, at least in some trucks, and the employment of additional drivers to enable the use of relief drivers. These measures went beyond what the appellant had contended at first instance was necessary for compliance.

153 While it may be that remedial measures should not be given great mitigatory weight when they should have been in place all along, and although the implementation of such measures may also involve a degree of selfpreservation (to avoid future prosecution, as was frankly acknowledged at first instance), it would be sending the wrong message to suggest that little credit should be given in sentencing to an employer who has genuinely demonstrated remorse (even belatedly) and has taken significant measures to ensure current and future compliance.

154 As for the respondent's safety record, in my opinion no mitigation could be derived from that fact in the circumstances of this case. The 'record' referred to by counsel on behalf of the respondent both at first instance and on appeal is in respect of road accidents. It may well be that the respondent has a good record in respect of the maintenance of its trucks and other plant, and in providing a safe working environment more generally for its employees, but, in my opinion, that is not relevant in the context of the specific safety issue that is the subject of the regulations. As for the absence of any prior accident, in my opinion it does not mitigate the respondent's culpability for the offending of which it was convicted or the extent to which it should be punished for that offending. If the offending had occurred in circumstances in which there had previously been an accident involving one of the respondent's trucks, resulting from driver fatigue, then obviously that would have been a significant aggravating factor. However, giving significance to a good safety record, when dealing with the obligations under reg 3.134 and reg 3.131, has the potential to undermine the vigilance expected of a responsible person to ensure the working hours prescribed by the Regulations are adhered to and accurate records are kept. It can lead to a mindset that ignores the potential dangers because they have not manifested previously.

155 Further, the significance of a safety record could carry little weight in the context of a prosecution for an occupational health and safety offence when the offender has a prior record of convictions and a history of improvement and prohibition notices being issued to the offender or its employees.

156 As I have said earlier, there was no evidence before the magistrate as to the respondent's financial circumstances, so no mitigation arose in that regard.

(iv) The need for general and personal deterrence

157 The learned magistrate accepted the need for general and personal deterrence. Having regard to the objects of occupational health and safety laws, and the added need to safeguard public safety in the context of long haulage heavy vehicle transport, the need for general deterrence will ordinarily be of paramount importance. That is essentially for the reasons identified by the prosecutor at first instance.

158 While the magistrate did not accept that the respondent had defiantly ignored its responsibilities deliberately for commercial gain, the facts indicated it had been negligent in its failure to comply with its obligations from a much earlier point in time than when it began to implement changes, and it may be assumed that every freight in respect of which there was non-compliance resulted in commercial benefit, irrespective of whether the non-compliance affected that benefit.

159 The need for general deterrence looks beyond the respondent's particular circumstances. As the prosecutor indicated, the modern marketplace often places pressures on suppliers and transport companies to meet deadlines for the delivery of goods. Those deadlines may be short, depending on the demands of consumers, and may be difficult to meet within the timeframes allowed by regulated work hours. However, the safety of commercial drivers and members of the public is paramount. Any compromise of regulations intended to safeguard the community, whether such compromise is intentional or negligent, must be deterred by condign punishment that will have a meaningful impact on corporate behaviour and commercial practices.

160 The need for personal deterrence arose from the respondent's history of non-compliance which had generated numerous improvement and prohibition notices, its prior convictions, and the fact the offending occurred so soon after those convictions. The need was somewhat tempered by the fact that the respondent had demonstrated remorse and a 'keenness' to implement remedial measures and ensure future compliance, as I have discussed when dealing with mitigating factors.

(v) Standards of sentences customarily observed

161 It is necessary finally to consider whether a standard can be identified of penalties customarily imposed for offences of this kind, or which would be expected for such offences. There has been no previous appellate consideration in this State of sentences imposed under reg 3.134 or reg 3.131.

162 The appellant initially sought to rely on a table summarising the outcomes in a number of cases at first instance where offenders were convicted of offences under pt 3 div 10 of the Regulations, mostly offences under reg 3.131 and reg 3.134. This was the same table that had been provided to the magistrate, with the addition of the conviction and outcome for the respondent's case in January 2015. The table covered the period from 2004 until 2015. The appellant submitted that:

the array of penalties imposed by the first instance magistrates between 2004 and 2015 range between 1% - 10% for first offences and 6% 24% for second offences when percentages are based on the total maximum penalty.

The respondent accepted that I could have regard to the outcomes in the table as a general indication of the range of penalties imposed for such offending, but submitted that its utility was limited by the absence of information about the factual circumstances of each case.

163 The use that could be made of such material, in the absence of relevant appellate cases, was considered by K Martin J in CE Oates & Sons Pty Ltd t/as Narrogin Retravision v Balla.[48] His Honor was provided with a table of a similar kind in respect of convictions for a particular offence under the Electricity (Licensing) Regulations 1991 (WA). Ultimately, his Honour did have regard to the table, but gave it little weight. His Honour referred to what was said in Hili v The Queen,[49] in the reasons of French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ, concerning the principle of consistency in sentencing and the utility of comparative cases. Their Honours endorsed what had been said by Simpson J in Director of Public Prosecutions (Cth) v De La Rosa[50] concerning the proper use of information about sentences that have been passed in other cases.[51] The relevant principles can be discerned from the following passage (quoted by K Martin J at [108]):[52]

As [Simpson J] pointed out, a history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits. As her Honour said: 'Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts'. But the range of sentences that have been imposed in the past does not fix 'the boundaries within which future judges must, or even ought, to sentence'. Past sentences 'are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence' [emphasis in original]. When considering past sentences, 'it is only by examination of the whole of the circumstances that have given rise to the sentence that "unifying principles" may be discerned'. (footnotes omitted)

164 As K Martin J noted,[53] the Court in Hili v The Queen went on to cite what was said by Gaudron, Gummow and Hayne JJ[54] in Wong v The Queen at [59]:[55]

[R]ecording what sentences have been imposed in other cases is useful if, but only if, it is accompanied by an articulation of what are to be seen as the unifying principles which those disparate sentences may reveal. The production of bare statistics about sentences that have been passed tells the judge who is about to pass sentence on an offender very little that is useful if the sentencing judge is not also told why those sentences were fixed as they were. (emphasis in original)

165 In CE Oates & Sons Pty Ltd t/as Narrogin Retravision v Balla, K Martin J went on to consider the 'bare statistics' derived from the information he had been provided. He considered the range of fines and costs, and the mean fine calculated from those statistics. His Honour noted that no information was given as to whether a plea of guilty had been entered and if so, at what point prior to sentencing. In the event, while it was clear that, in comparison with the sentencing history contained in the table, the stand alone magnitude of a the fine imposed in that case was notably greater than any fine recorded in the table, the difficulty was that each sentencing disposition had to be implemented 'upon its unique facts and underlying circumstances'.[56] His Honour was not satisfied that it was so disproportionate to the sentencing history for the offence in that case as to be manifestly excessive.

166 The table presented in this case does identify whether there was a plea of guilty and, if so, when it was entered relative to sentencing. However, apart from brief particulars of the 'charge details' and the status of one particular corporate offender (which I will refer to below), the table does not contain any factual information concerning the offences or the circumstances of the offenders referred to therein. It does not tell the court why the fines were fixed as they were. That stands in contrast to appellate decisions in respect of sentencing. The reasons in appellate decisions, including the factual circumstances of the case, will ordinarily be readily available.

167 Further, there is an immediate problem with the range of fines that might be discerned from the table in this case. That is because it contains the penalties imposed on the respondent in January 2015 for the first series of offending. The respondent has acknowledged that the fines on that occasion were very low. Indeed, it submitted that the failure of WorkSafe WA to appeal those fines may have given the magistrate false comfort in the penalties he arrived at. In any event, it illustrates the potential that exists, when all known cases are included in a table of this kind (which clearly is proper and necessary), for the information to distort what might be regarded as an appropriate range. It confirms the proposition that a history of sentencing does not establish that the range is the correct range, or that the upper or lower limits of the range are the correct upper and lower limits.

168 Moreover, the appeal proceeded on the understanding of both parties that, generally, a second offence will attract a greater penalty than a first offence. That is obviously correct, given the greater maximum penalty and the fact that generally such offending will involve greater culpability and give rise to the need for personal deterrence. However, the table contained only three cases that involved subsequent offending, and two of those involved the same offender. As I noted earlier, it is a small sample from which to discern a range or standard of sentencing. Similarly, only four of the cases involved breaches of reg 3.134(1), and each of those occurred together with breaches of reg 3.131(1)(a) (including the prior convictions incurred by the respondent). Only two of those were cases of subsequent offences.

169 In short, the table does not enable any 'unifying principles' to be discerned and is of limited value for the purpose of comparative sentencing. Nevertheless, in the absence of appellate consideration of sentences under the relevant regulations, the 'bare statistics' provide some insight (albeit limited) into the 'standards' of penalties that have been considered appropriate at first instance. That does not mean the standards are correct, but in determining what is an appropriate penalty in this case, I should not ignore any pattern that may emerge as a result of the application of accumulated experience and wisdom of magistrates dealing with cases under the regulations at first instance. Notwithstanding the limitations to which I have referred, I am inclined to take a similar approach as K Martin J did in CE Oates & Sons Pty Ltd t/as Narrogin Retravision v Balla. I regard the table as providing relevant information for the purposes of assessing proportionality and consistency, but the weight to be given to the information in determining the adequacy of the penalties in this case will be limited.

170 As I noted earlier, referring to the judgment of E M Heenan J in Goddard,[57] what is desirable is that there be a 'general proportionality and consistency in sentencing for offences of like kind'. The objective of achieving broad consistency requires consideration of similar cases, not necessarily identical cases.[58] While the circumstances surrounding the commission of offences under reg 3.131(1)(a) and reg 3.134(1) may differ, the essence in each case is (a) the failure to ensure compliance with the 'work hours' provisions intended to guard against drivers of commercial vehicles driving while fatigued and (b) the failure to ensure the maintenance of current records to enable a responsible person and relevant authorities to monitor compliance with the regulations to prevent drivers driving while fatigued. One may assume, also, that, given the nature and objects of the regulations, magistrates have sought at least to give effect to general deterrence in the penalties they have imposed, as did the magistrate in this case.

171 If one were to put aside the penalties imposed on the respondent in January 2015, the 'bare statistics' revealed by the table include the following:

1. For a first offence under reg 3.131(a) (carrying a maximum of $50,000) fines have ranged from $1,000 for one offence (although imposed at the same time as a fine of $4,000 for another count under the same regulation), being 2% of the maximum, to $5,000 for a single offence, being 10% of the maximum;
2. For a second or subsequent offence under reg 3.131(a) (carrying a maximum of $62,500) fines have ranged from a global fine of $20,000 for 3 such offences and 2 counts under reg 3.134, which represented 6.4% of the maximum, to $15,000 for a single offence, being 24% of the maximum;
3. For a first offence under reg 3.134(1), the two fines recorded were a global fine of $5,000 for one count under reg 3.134(1) and two other offences under reg 3.131(1), representing 3.3% of the maximum, and a fine of $3,000 for a single count under reg 3.134(1), being 6% of the maximum, although in the context of a separate fine being imposed for an offence under reg 3.131(1)(a) which was 10% of the maximum.;
4. For a second offence under reg 3.134(1), the only statistic was the global fine of $20,000 I have referred to in paragraph numbered 2 above.

172 It must be noted that two of the cases in the table were convictions after trial, and other cases involved late pleas of guilty, including a change of plea at trial. However, in 6 of 11 matters, there was a plea of guilty that appears to have been made in a timely manner (in that there is no indication it was late). Significantly, the case involving a fine of $15,000 for a single offence under reg 3.131(1)(a), which was a second offence, was a conviction after trial.

173 It must also be noted that the costs orders varied from an instance where the parties bore their own costs to a costs order of $11,000 at the other extreme (where the global fine was $9,000 for 9 offences, being 2% of the maximum for first offences).

174 The only indication in the table of the 'personal' circumstances of an offender was that in a case in which the global fine imposed on a first offender amounted to 2% of the maximum available (for a total of 9 offences), the company was in administration.

175 The disparate combinations of the type and number of offences, the circumstances of conviction and the form of penalty (in some instances a global fine for all offences, under different provisions; in other cases separate fines for the different types of offences) makes any meaningful comparison very difficult, even before one considers that the specific facts of each case are not known and totality would have been relevant in some cases, although perhaps not in others. Even so, fines amounting to 1.6% of the maximum for the reg 3.134(1) offences and 4.8% of the maximum for the reg 3.131(1)(a) offences, would appear to be notably lower than the penalties imposed for subsequent offences in previous cases disclosed in the table. I am left with the impression that the sentences in this case are unduly disproportionate and inconsistent with the approach in the limited number of other cases involving subsequent breaches, and with the standard to be expected to give effect to the need for general deterrence. As I said earlier, the respondent has not sought to argue otherwise.

176 In its further written submissions, the appellant identified four superior court decisions from other jurisdictions which provide insight into what has been considered to be an appropriate standard of sentencing for similar offending in those jurisdictions. Three are from South Australia and one is from New South Wales. However, the cases were not proffered as comparators factually, nor as revealing any 'unified principles', because of differences in the statutory regimes and the maximum penalties, and the fact that in the South Australian cases the prosecutions were against individual drivers (not an employer) who had breached regulations. Indeed, both parties agreed that little assistance can be obtained from those decisions in determining this appeal, and that it would be necessary for this court to determine the appropriate penalty by the application of general principles. Nevertheless, it is appropriate to consider the cases that were identified, as the objectives in sentencing for this kind of offending are common across jurisdictions.

177 The South Australian Supreme Court decisions of Department of Planning, Transport and Infrastructure v Favotti[59] and Department of Planning, Transport and Infrastructure v Bridgart[60] were both appeals against sentence for manifest inadequacy in relation to an offence of making a false record in a work diary required to be compiled pursuant to the Road Traffic (Heavy Vehicle Driver Fatigue Regulation) 2008 (SA) and contrary to s 165(1) of the Road Traffic Act 1961 (SA). Each case concerned a single offence committed by an individual driver, and the maximum penalty was $10,000 or 6 months' imprisonment. It is obvious, therefore, why those cases are not suitable comparators. However, fines of $150 and $200, respectively, were held to be manifestly inadequate. In Favotti, there were unusual circumstances that resulted in the magistrate's orders standing, although Peek J considered that an appropriate starting point for a 'basic offence' under the relevant provision 'might be in the broad vicinity of $2,000 to $2,500 with that figure being substantially reduced for particular mitigating circumstances'.[61] In Bridgart, a fine of $2,000 was substituted.

178 In Department of Planning, Transport and Infrastructure v Brown[62] the respondent truck driver was charged with one count of driving a heavy vehicle in excess of the maximum time allowed, in particular, working a total of 15.5 hours in a 24hour period, contrary to reg 16(3)(a) of the Road Traffic (Heavy Vehicle Driver Fatigue Regulation) 2008 (SA). The maximum penalty was $10,000. The respondent had been fined $400. That penalty was considered to be manifestly inadequate. Stanley J substituted a fine of $1,750. The circumstances of that case would not have constituted an offence against the Regulations in Western Australia, because the maximum work time allowed in a 24hour period without a continuous seven hour break in Western Australia is 17 hours. However, the offending was analogous to the offences under reg 3.131(1)(a) in this case, except that in this case I am concerned, not with the actions of the driver, but with the failure of the respondent to ensure compliance with the regulated hours by its driver.

179 While the South Australian decisions (which were all in respect of first offences) are of limited assistance in determining this appeal, they show that, in that jurisdiction, penalties of less than 4% of the maximum financial penalty for offences of falsifying fatigue records, and for driving in excess of the prescribed maximum hours, were considered to be manifestly inadequate, and penalties between 10% to 20% of the maximum financial penalty were considered appropriate to achieve the purposes of sentencing.

180 The appellant submitted that a case that was more analogous to the present case was the first instance sentencing decision of Garling J in the New South Wales Supreme Court in Palfrey v Spiteri.[63] In that case there were 44 charges arising from a single course of conduct, involving a failure to implement a system of fatigue management under the Road Transport (General) Regulations 2005 (NSW).[64]

181 Similarly to the present case, in Spiteri the offences involved the conduct of a number of drivers, but none of the offences had resulted in any actual injury, loss or damage to any person. The drivers were employed by a company called South Penrith Sands & Soil Pty Ltd. The company was charged with 9 offences, but the majority of the charges (20) were brought against Mr Spiteri, a director and employee of the company. Another employee, who was a 'scheduler' for the company, was charged with 13 offences, and Mrs Spiteri, another director, was charged with 2 offences. It is sufficient to focus on the disposition in respect of Mr Spiteri and the company. Garling J adopted a 'percentage' based approach. It would seem that he did so, at least in part, to highlight the fact that Mr Spiteri was not being doubly punished by the imposition of separate penalties on the company for offences that arose from the one course of conduct involving Mr Spiteri.[65]

182 The conduct the subject of the charges in Spiteri occurred within a period of approximately one month. It involved six drivers, who constituted a significant proportion of the company's permanent work force of drivers. Although the offending arose from a single course of conduct, Garling J considered that it did not follow that 'no penalty ought to be imposed with respect to some, or perhaps most of the charges'.[66] That was because each charge represented an occasion of criminality, and an occasion when road users and travelling public were potentially put at risk.

183 However, in contrast to the circumstances of this case, the maximum penalties available for the company ranged from $11,000 to $22,000. The maximum penalties for the individuals ranged from $2,200 to $4,400.

184 As the appellant submitted, Garling J took a precise approach to the sentencing exercise in Spiteri, given the large number of charges, the multiple number of offenders, and the nature of the involvement of each of the offenders in the course of offending. In respect of Mr Spiteri, his Honour generally imposed a fine of 50% of the maximum. Where a second offence was charged with respect to the same driver and the same date, the second fine was 25% of the maximum. His Honour indicated that in a number of cases where he had formed the view that the breaches were more serious, the fines he imposed were higher. His Honour indicated that, in respect of the company, he had imposed penalties which reflected the fact that, on the one hand, the company was the principal operator of the business, but on the other, Mr Spiteri was in real control and the company was essentially a one person company. His Honour considered that it would be inappropriate to impose a fine on the company so that Mr Spiteri was doubly punished. For that reason, he generally fixed the fine at 30% of the maximum for the company and, if there was a second offence arising out of the same driver's conduct on the same date, the fine for the second offence was fixed at 15% of the maximum.

185 Again, the different maximum regime and maximum penalties, as well as the particular circumstances of the case that affected the penalties imposed relatively on Mr Spiteri and on the company mean that the case cannot be relied upon as a suitable comparator, or to discern a 'unified principle'. However, the seriousness with which the offending in that case was regarded is manifest in the fines imposed, as a percentage of the maximum penalty. The offending was analogous to the offences in this case in that it involved breaches of a duty to ensure that drivers did not drive while impaired by fatigue. A penalty of 30% of the maximum was considered appropriate for the company, and that was mitigated in the way I have already outlined.

186 The survey of the cases from South Australia and New South Wales reinforces the impression to which I have already referred, that the penalties imposed in this case are unduly disproportionate and inconsistent with sentences imposed in other cases for breaches of duties of the same or an analogous kind. They are inconsistent with the standards of sentencing one would expect to give proper effect to the relevant sentencing objectives. The mitigating factors in this case could not account for the extent of departure from those standards.

187 The cases referred to in the table and in submissions do not establish a tariff. Any attempt to identify a tariff would be futile, because of the innumerable potential variations in the circumstances of offending and of offenders. However, in my opinion, in the absence of unusual circumstances, the penalty for a single offence that is a subsequent offence for a corporation, for a breach of reg 3.131(1)(a) or reg 3.134(1), would ordinarily be expected to be well in excess of 5% of the maximum penalty, and more appropriately in the range between 10% and 30%. To the extent that the table tendered by the appellant and the cases from other jurisdictions tend to indicate such a range (bearing in mind it does not establish boundaries), it appears to me to be appropriate for the purposes of giving effect to the objects of the legislation. In particular, penalties should be at a level that is a financial disincentive to offending.

188 The increased maximum penalty, the need for a greater degree of general deterrence and the likely need for personal deterrence in cases of subsequent offences would ordinarily result in significantly greater penalties than those imposed for first offences. The appropriate level of penalty for a series of offences will depend on the circumstances, the extent to which the offending consists of a course of conduct, the extent to which there might be double punishment and so on.

189 The totality principle requires that the total effective sentence must bear a proper relationship to the total criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally.[67] The court should also endeavour to avoid a crushing sentence, if that can be achieved consistently with the requirements of justice. In the context of sentencing involving fines, the practical effect of the totality principle would ordinarily be to arrive at an aggregate of fines that is less than that which would be arrived at simply by adding up all the fines appropriate for the individual offences. The imposition of a global fine will ordinarily reflect a reduction of the penalty that may have been appropriate if a separate fine was imposed for each offence, and the fines were aggregated. That is one reason why assessing the adequacy of a sentence in a case of multiple offences that are part of a course of conduct by reference to a percentage of the maximum penalty, where the maximum is calculated by multiplying the statutory penalty by the number of offences, is problematic.

190 More generally, when weighing the significance of the fact that the offending consists of a 'single failure' to comply with a statutory duty, which has resulted in numerous breaches, if that is the case, there may be factors pulling in different directions, in the sense of aggravating and mitigating factors that may respectively increase or decrease the penalty. That was a matter identified by Garling J in Spiteri.[68] However, as the magistrate properly recognised in this case, road safety is the paramount consideration.

191 Having regard to all of the relevant circumstances, as discussed, I am satisfied that the fines imposed by the learned magistrate in respect of both the record-keeping offences and the 'work hours' offences are manifestly inadequate. Allowing for the mitigating factors to which I have referred and the application of the totality principle, a global fine that represents 1.6% of the available maximum penalty for the record-keeping offences is unreasonable. Similarly, making the same allowances, a global fine that is 4.8% of the available maximum penalty for the 'work hours' offences is also unreasonable.

192 In each case, the penalty fails to adequately reflect the seriousness of the offending and the need for general and personal deterrence. It is not punishment of a kind that could be expected to have a meaningful impact on corporate behaviour and commercial practices to ensure compliance with the Regulations. That is particularly so, given that these were subsequent offences committed within a short time after the respondent had been convicted and sentenced for similar offending, against a background of poor compliance that had necessitated the issuing of improvement and prohibition notices by the regulatory body over a number of years.

193 In each case, the penalty is not consistent with the standards of sentencing to be expected for such offending, in order to properly give effect to the objects of the legislation I have referred to, which, although not express, can be discerned from the context and subject matter of the relevant regulations.

194 Accordingly, leave will be granted in respect of ground 2 and the appeal will be allowed. The fines imposed by the learned magistrate will be set aside, and it will be necessary to impose a different sentence in each case.

195 In light of my decision in respect of ground 2, it is not necessary to deal with ground 3 separately. It was pleaded in the alternative and is subsumed within ground 2.

196 It is necessary to re-sentence the respondent, having regard to all the matters that I have identified as relevant to determining the appropriate penalty in my reasons for deciding the appeal.

197 The affidavit of Mr Lenzi provides additional information concerning the respondent. The company commenced trading in 1977 in South Australia. It always provided transport services between South Australia and Western Australia and to various places within Western Australia. After a period of expansion between 1977 and 2008, the company decided to focus on its operations between Melbourne, Adelaide and Perth, concluding that it could not compete with larger transport companies that operated Australia wide. At the time of sentencing before the magistrate, the company operated 18 road trains per week. It employed 30 drivers, eight office staff and five mechanics. At the time of the affidavit, the number of road trains per week had reduced to 15.

198 Mr Lenzi provided financial information for the 2015/2016 financial year. He said that the company had net assets of over $5.6 million, gross revenue of over $14 million and net profit after tax of $592,525. However, there is no information concerning the financial gain made by the respondent from each of the freight trips that was the subject of a charge.

199 While the company may be small relative to some other transport companies, as maintained by Mr Lenzi, in my opinion it is by no means a small business. Importantly, nothing in the information provided by Mr Lenzi indicates that the respondent would not be able to pay a fine that is substantially greater than was imposed by the learned magistrate. Any such fine would need to have a meaningful commercial impact on the respondent if it is to serve the purposes of general and personal deterrence.

200 The significant mitigating factors are that the respondent pleaded guilty, demonstrated remorse and has taken significant remedial steps to prevent non-compliance with the Regulations in the future. Although somewhat belatedly, it has shown an appreciation of the seriousness of noncompliance and the risk it posed to the safety of its drivers and the public generally. While there is no evidence of the financial cost of the remedial measures, I accept it has been significant and demonstrates the respondent's commitment to future compliance. However, I do not regard the financial burden of such measures as a mitigating factor, given that it is incumbent on the respondent to take all necessary measures to comply with the Regulations if it is going to be in the business of operating heavy haulage commercial vehicles for profit.

201 As for the relative seriousness of the recordkeeping and 'work hours' offences, I note that there have been occasions in other cases where there has not been differentiation and a global fine has been imposed for the combination of offences. In other cases there has been differentiation. In the circumstances of this case I consider it appropriate to regard the reg 3.131(1)(a) offences as being more serious, as the nature of the offence more directly establishes the risk of driver fatigue and danger to the public, the offending occurred over a period of more than one month, and the breaches were evident from the driver's diary sheets, so that later instances could have been prevented if adequate monitoring had been conducted. However, given the acknowledgment by the respondent that the reg 3.134(1) offences would have led to breaches of the 17hour rule, those offences, in my opinion, should be regarded as being particularly serious in this case, approaching a level of seriousness close to that of the reg 3.131(1)(a) offences.

202 On the facts stated in respect of each offence, I would not consider that the penalty for any particular breach should be more or less than for any of the other breaches.

203 Taking into account the seriousness of the offences and all relevant aggravating and mitigating factors to which I have referred in the course of these reasons, but before making allowance for totality, I am of the view that the appropriate penalty for each of the 9 offences against reg 3.134(1) would be a fine of $5,000, being 8% of the maximum penalty, and the appropriate penalty for each of the 6 offences against reg 3.131(1)(a) would be a fine of $6,250, being 10% of the maximum penalty. However, in my opinion, the aggregate of such fines would be disproportionate to the total criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the respondent. That is particularly so because the offending involved a single systemic failure that enabled a number of breaches to be committed without the respondent being aware of the individual instances. That must be weighed against the potential risk that arose from each individual instance and the fact that the respondent was aware of previous breaches and had failed to take adequate remedial measures earlier. Further, the 'work hours' offences occurred over a period of over one month and the breaches were evident from the driver's records. The moderation of the penalty for those offences should be less than for the recordkeeping offences.

204 In my opinion, a proper measure of the criminality in respect of the two categories of offences will be achieved by

1. imposing of a global penalty for the recordkeeping offences that is twothirds of the total that would otherwise result from accumulation of the appropriate individual fines for those offences; and
2. imposing of a global penalty for the 'work hours' offences that is approximately 75% of the total that would otherwise result from accumulation of the appropriate individual fines for those offences.

205 Accordingly, the respondent will be fined $30,000 in respect of the 9 offences under reg 3.134(1), and $28,000 for the offences under reg 3.131(1)(a).

206 Leave is refused in respect of ground 1 of the appeal, and the appeal is dismissed on that ground.

207 Leave is granted in respect of ground 2 of the appeal.

209 The fines of $9,000 for the 9 offences under reg 3.134(1) and $18,000 for the 6 offences under reg 3.131(1)(a) are set aside.

210 I impose instead a single fine of $30,000 for the 9 offences under reg 3.134(1) and a single fine of $28,000 for the 6 offences under reg 3.131(1)(a).

[2] Sentencing Act 1995 (WA), s 54(1)(b).

[5] Criminal Appeals Act 2004 (WA), s 9. The formulation requires that the ground have a rational and logical prospect of succeeding: Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56] (Steytler P, Wheeler & Roberts-Smith JJA).

[7] The stipulation of the penalty both creates an offence for the contravention of the regulation and provides the penalty for that offence: Interpretation Act 1984 (WA), s 72.

[15] Criminal Appeals Act 2004 (WA), s 39(3).

[17] Table 1 annexed to the Appellant's Outline of Submissions filed 5 May 2017.

[18] Appeal Book, 28 (ts 6 7 (8 December 2016).

[19] Respondent's Outline of Submissions dated 23 May 2017 [9].

[20] Respondent's Outline of Submissions dated 23 May 2017 [8].

[21] Corporations Act 2001 (Cth), s 292.

[24] Respondent's Outline of Submissions dated 23 May 2017 [9].

[26] House v The King [1936] HCA 40; (1936) 55 CLR 499, 504 505 (Dixon, Evatt & McTiernan JJ); Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665.

[27] R v Tait (1979) 46 FLR 386, 389 (Brennan, Deane & Galop JJ); Wilson v The State of Western Australia [2010] WASCA 82 [2].

[28] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, 324 325 (Gleeson CJ & Hayne J).

[29] Goddard v City of Stirling [2009] WASC 28.

[30] Goddard v City of Stirling [2009] WASC 28 [12].

[31] Sentencing Act 1995 (WA), s 6; Weng Keong Chan v The Queen (1989) 38 A Crim R 337, 342 (Malcolm CJ); Mack v The State of Western Australia [2014] WASCA 207 [194] (Buss JA, Martin CJ & Mazza JA agreeing); Beydoun v City of Stirling [2015] WASC 25 [155].

[32] BHP Billiton Iron Ore Pty Ltd v Capon [2014] WASC 267 (S).

[33] BHP Billiton Iron Ore Pty Ltd v Capon [2014] WASC 267 (S) [7].

[34] BHP Billiton Iron Ore Pty Ltd v Capon [2014] WASC 267 (S) [7].

[35] Goddard v City of Stirling [2009] WASC 28 [17].

[36] Kershaw v The State of Western Australia [2014] WASCA 111 [157] (Mazza JA).

[37] Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 [54] (French CJ, Gummow, Hayne, Crennan, Kiefel & Bell JJ); Fenton v The State of Western Australia [2015] WASCA 255 [17] (McLure J); The State of Western Australia v Ellement [2016] WASCA 1 [37] (Mazza JA).

[38] Such an approach would be analogous to the approach taken in identifying the sentencing range for some criminal offences, such as armed robbery, where the range is in respect of sentences 'commonly imposed' before mitigating factors are taken into account: see Forkin v The State of Western Australia [2013] WASCA 51 [15].

[39] Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357; Muldrock v The Queen [2011] HCA 39; (2011) 85 ALJR 1154 [26]; Nannup v The State of Western Australia [2011] WASCA 257 [47] [52] (Buss JA; McLure P & Mazza J agreeing).

[41] Respondent's Outline of Submissions dated 23 May 2017 [14].

[42] Respondent's Outline of Submissions dated 23 May 2017 [15].

[43] The penalty specified in both reg 3.131 and reg 3.134 for a breach of the regulation in each instance is the reg 1.16 penalty, which is $62,500 for a subsequent offence (i.e. an offence subsequent to a first offence).

[44] Interpretation Act 1984 (WA), s 72.

[47] Morrison v Competitive Foods Ltd t/a Hungry Jacks (Unreported, WASC; Library No 9118, 25 October 1991) 11 - 12.

[48] CE Oates & Sons Pty Ltd t/as Narrogin Retravision v Balla [2015] WASC 144 [105] - [111].

[49] Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520.

[50] Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 [303] - [305].

[51] Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 [54].

[52] Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 [54]. See Nembousse v The State of Western Australia [2015] WASCA 68 [14] - [16].

[53] CE Oates & Sons Pty Ltd t/as Narrogin Retravision v Balla [2015] WASC 144 [109].

[54] Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584.

[55] Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 [55].

[56] CE Oates & Sons Pty Ltd t/as Narrogin Retravision v Balla [2015] WASC 144 [113].

[57] Goddard v City of Stirling [2009] WASC 28 [17].

[58] Kershaw v The State of Western Australia [2014] WASCA 111 [157] (Mazza JA).

[59] Department of Planning, Transport and Infrastructure v Favotti [2014] SASC 103.

[60] Department of Planning, Transport and Infrastructure v Bridgart [2014] SASC 112.

[61] Department of Planning, Transport and Infrastructure v Favotti [2014] SASC 103 [28].

[62] Department of Planning, Transport and Infrastructure v Brown [2014] SASC 113.

[63] Palfrey v Spiteri [2014] NSWSC 842.

[64] Palfrey v Spiteri [2014] NSWSC 842 [46].

[65] Palfrey v Spiteri [2014] NSWSC 842 [107] [112].

[66] Palfrey v Spiteri [2014] NSWSC 842 [47].

[67] Roffey v The State of Western Australia [2007] WASCA 246 [24] - [26].