The Roads and Traffic Authority of New South Wales v Fletcher International Exports Pty Limited

Supreme Court of NSW|2008-06-20|Before: Price J

CITATION : The Roads and Traffic Authority of New South Wales v Fletcher International Exports Pty Limited [2008] NSWSC 936

CATCHWORDS : Crown appeal - manifest inadequacy of sentences imposed in Local Court for offences against s 53 of the Road Transport (General) Act 2005 - severe risk breaches - consignor of goods - discrete errors giving rise to questions of law - considerations to be taken into account on sentence - totality - second or subsequent offence - consideration of principle in O'Hara v Harrington - re-sentence.

Road Transport (General) Act 2005 s 33(1), s 53, s 53(1), s 88 Crimes (Sentencing Procedure) Act 1999 s 3A, s 17, LEGISLATION CITED : s 21A, s 33(2), s 52 Interpretation Act 1987 s 21 Crimes (Appeal and Review) Act 2001 s 56(1), s 56(1)(a)

Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 Attorney General for NSW v X (2000) 49 NSWLR 653 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Collector of Customs v Agfa Gevaert Ltd (1995) 186 CLR 389 Dinsdale v The Queen (2000) 202 CLR 321 Director of Public Prosecutions v Sami El Mawas [2006] NSWCA 154 Everett v The Queen (1994) 181 CLR 295 Griffiths v The Queen (1977) 137 CLR 293 House v The King (1936) 55 CLR 499 Lowndes v The Queen (1999) 195 CLR 665 Malvaso v The Queen (1989) 168 CLR 227 Markarian v The Queen (2005) 79 ALJR 104 CASES CITED : O'Hara v Harrington [1962] TAS SR 165 Pearce v The Queen (1998) 194 CLR 610 Police v Nowak [2002] SASC 82 R v Allpass (1993) 72 A Crim R 561 R v Barton (2001) 121 A Crim R 185 CLR 245 R v Johnson [2004] NSWCCA 140 R v Papazis (1991) 51 A Crim R 242 R v Tait (1979) 46 FLR 386 R v Wall [2002] NSWCCA 42 Reid v Rowbottam [2005] NTSC 7 Rivera v Maher (1992) Tas R 228 Samuels v McKenzie (1979) 23 SASR 82 Wong and Leung v The Queen (2001) 76 ALJR 79

TEXTS CITED : Hansard, Legislative Assembly, 6 April 2005 at 15050

PARTIES : The Road and Traffic Authority of New South Wales Fletcher International Exports Pty Limited.

COUNSEL : T Lynch (Plaintiff) N Perram SC & N Carney (Defendant)

SOLICITORS : Hunt & Hunt Solicitors (Plaintiff) Moore & Co Solicitors (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

10142 of 2008 The Roads and Traffic Authority of New South Wales v Fletcher International Exports Pty Limited

JUDGMENT 1 HIS HONOUR: By an amended summons filed on 20 June 2008, the plaintiff, the Roads and Traffic Authority of New South Wales, appeals against the sentences imposed upon the defendant (Fletcher International Exports Pty Limited) in the Local Court at Condobolin on 18 December 2007. The principal contention is that the Magistrate erred in imposing a sentence for each of the offences which was manifestly inadequate. 2 Proceedings had been commenced by the plaintiff against the defendant by ten Court Attendance Notices (CANS) which each alleged an offence had been committed against s 53 of the Road Transport (General) Act 2005 (the Act). 3 Section 53(1) is as follows: "A person is guilty of an offence if: (a) a breach of a mass, dimension or load restraint requirement occurs, and (b) the person is the consignor of any goods that are in or on the vehicle or combination concerned. Maximum penalty: see Table to Division." 4 It was the plaintiff's case that the defendant was the consignor of loads of grain on heavy vehicles which were driven on a road or road related area on 22, 23 and 24 November 2005 in breach of the mass requirements applicable to such vehicles. Each offence was said to fall into the "severe" category within the meaning of s 33(1) of the Act. 5 The defendant pleaded not guilty to each offence. The case was heard by the Magistrate on 6 November 2007. The hearing proceeded on the basis that the plaintiff was able to prove its case in each matter and the only issue was whether the defendant was able to make out the reasonable steps defence provided by s 88 of the Act. 6 The relevant facts were that the defendant on 27 September 2005 entered into a contract to purchase the land known as Kiargathur Station, Condobolin from S Kidman & Co Limited ("Kidmans").The purchase price included crops of wheat growing upon the land. It was not in dispute that the parties to the contract agreed that Kidmans would harvest the wheat and arrange for its delivery to GrainCorp. Settlement took place on 8 November 2005. The parties further agreed that Kidmans would retain possession of the land for a period of six months after settlement and would attend to various managerial roles which included the harvesting and delivery of wheat to GrainCorp. 7 In a judgment ('the judgment on liability') delivered on 4 December 2007 his Honour accepted that Kidmans acted as agent for the defendant after settlement particularly with respect to the harvest and delivery of the wheat to GrainCorp. Whilst Kidmans was acting as the defendant's agent, the offences occurred. 8 His Honour was satisfied that the defendant did not know of the contraventions. The defendant, however, had not established it could reasonably be expected not to have known of them. 9 His Honour said: " I am not of the view that the defendant company could not reasonably be expected to have maintained a watch on the matters being attended to by Kidmans on its behalf and could not reasonably be expected to have inquired into the delivery of the grain to GrainCorp with an eye to the investment made by the company in the purchase of it. In the event that the defendant company sought to turn a blind eye to whether the trucks delivering the grain to GrainCorp were overloaded or not, is not, in my view a sufficient answer to this requirement ." 10 The defendant's submission that there were no steps that the company could reasonably be expected to take in the circumstances was rejected as was the contention that the company was simply entitled to rely on Kidmans. His Honour found that the defendant had custody and control of the heavy vehicle in each case through its agent Kidmans. 11 His Honour concluded: " My view is that the statutory defence requires that the defendant company satisfy me that it did something to address the issue of its responsibility as the consigner of the grain to ensure that trucks delivering the grain were not overloaded. There were ten breaches. They were all serious. The defendant company was simply prepared to let Kidmans act as its agent without taking any supervisory role or making any attempt to monitor the outcome of grain deliveries ." 12 His Honour was not satisfied that the reasonable steps defence had been established and found each offence proved.

13 The proceedings were adjourned for sentence on 18 December 2007. During the proceedings on sentence the offences were not placed by the plaintiff before the Magistrate in chronological order but by way of case number. This was a matter which his Honour justifiably found to be unhelpful. He remarked that it seemed "to be the bane of the existence of the Local Court." 14 Consistent with the obligation to assist the court, where there are multiple offences and the subsequent offences are said to impact upon the maximum penalties to be imposed careful attention should be paid by a prosecuting authority to placing the offences before the court in the order that they are alleged to have occurred. 15 Unlike his Honour, I have had the assistance of the plaintiff's counsel who provided the following table of offences: Case No Offence Vehicle Load (lawful max 79 tonnes) Overloading as % of 79 tonnes Max penalty (in p/units) 22.11.05 6 13.14pm ELM 525 101.90 128.99% 450 1 13.39pm XQJ 329 123.05 155.76% 1125 2 20.15pm XQJ 329 122.00 154.43% 1100

23.11.05 7 00.21am ELM 525 103.05 130.44% 500 3 15.48pm XQJ 339 116 146.84% 900 8 17.51pm ELM 525 104.3 132.03% 550 4 21.47pm XQJ 329 120.03 152.28% 1050

24.11.05 9 00.13am ELM 525 105.75 133.86% 575 5 7.50am XQJ 339 118.45 149.93% 975 10 12.35pm ELM 525 104.75 132.59% 550

One penalty unit is $110: s 17 of the Crimes (Sentencing Procedure) Act 1999; s 21 of Interpretation Act 1987. 16 The table treats each offence as a "first offence". There is, however, an issue about the correctness of that approach. The submission made to his Honour by the prosecutor was that each of the cases, other than case 6, was a subsequent offence. The plaintiff contended in this Court that each offence other than case 6 was a subsequent offence and the maximum penalties were as follows: Case Number Maximum penalty (in p/units) 6 450 1 2250 2 2200 7 1000 3 1800 8 1100 4 2100 9 1150 5 1950 10 1100

It is important, however, to observe that as the proceedings were in the Local Court the maximum penalty for a second and subsequent offence is 500 penalty units which is the maximum penalty available in the Local Court: s 180(2)(a) of the Act. If each of the offences is to be treated as a "first offence" the maximum aggregate penalty available to the Magistrate was $495,000. If each offence after case 6 is to be treated as a "second or subsequent offence", the maximum aggregate penalty was $544,500. 17 Following submissions from the legal representatives for the parties, his Honour convicted the defendant of each offence but dealt with nine of the offences pursuant to the provisions of s 10A(1) of the Crimes (Sentencing Procedure) Act 1999 without imposing any other penalty.

18 For the remaining offence, the defendant was fined $3,000 and ordered to pay professional costs of $2,665 together with court costs of $70. 19 The plaintiff appeals to this Court pursuant to s 56(1) of the Crimes (Appeal and Review) Act 2001 which relevantly is as follows: "The prosecutor may appeal to the Supreme Court against: (a) a sentence imposed by a Local Court in any summary proceedings; … … but only on a ground that involves a question of law alone. " (italics added) 20 A prosecutor who appeals to the Supreme Court against a Local Court sentence is confined by s 56(1)(a) of the Crimes (Appeal and Review) Act to a ground that involves a question of law alone. There is no universally applicable test for distinguishing questions of law from questions of fact: Collector of Customs v Agfa Gevaert Ltd (1995) 186 CLR 389 at 394. The expression "question of law" is wider than "error of law": Attorney General for NSW v X (2000) 49 NSWLR 653 at 660. A mixed question of fact and law does not fall within the description of "question of law alone": Attorney General for NSW v X at 663. 21 An appeal by the Roads and Traffic Authority is a Crown appeal against sentence. 22 The principles relevant to Crown appeals against sentence are well established and were summarised by Wood CJ at CL in R v Wall [2002] NSWCCA 42 at [70]: "…it is important to note the principles which apply in relation to the determination of a Crown appeal against sentence: (a) The normal restriction upon appellate review of the exercise of a discretion, as set out in House v The King (1936) 55 CLR 499, applies to Crown appeals against sentence: Dinsdale v The Queen (2000) 202 CLR 321; with the result that this Court cannot merely substitute its opinion, as to the appropriate sentence, for that of the sentencing judge: Lowndes v The Queen (1999) 195 CLR 665 at 671; rather, it may interfere only where error either latent or patent is shown; R v Tait (1979) 46 FLR 386 at 388; and Wong and Leung v The Queen (2001) 76 ALJR 79 at para 58 and para109. (b) Appeals by the Crown should generally be rare; Malvaso v The Queen (1989) 168 CLR 227 at 234, and unless there is a clear error of principle identified, it would be exceptional for the Court to interfere: R v Baker [2000] NSWCCA 85. (c) A Crown appeal against sentence is concerned with establishing matters of principle "for the governance and guidance of courts having the duty of sentencing convicted persons": per Barwick CJ in Griffiths v The Queen (1977) 137 CLR 293 but this power extends to doing what is necessary to avoid manifest inadequacy or inconsistency in sentencing, that is, where the sentence is definitely outside the appropriate range for the case in hand: Everett v The Queen (1994) 181 CLR 295 at 299; Dinsdale v The Queen (2000) 202 CLR 32, at para 61 and para 62, and Wong & Leung v The Queen at para109. (d) The Court has a lively discretion to refuse to intervene even if error has been shown, and in deciding whether to exercise that discretion, it should have regard to the double jeopardy that a convicted person faces as a result of a Crown appeal: R v Allpass (1993) 72 A Crim R 561, R v Papazis (1991) 51 A Crim R 242 at 247, and Wong and Leung v The Queen at para110. (e) A sentence which is imposed as a consequence of a successful Crown appeal will generally be less than that which should have been imposed by the sentencing court: R v Holder and Johnston (1983) 3 NSWLR 245 at 256, and will generally be towards the lower end of the available range of sentence: Dinsdale v The Queen at para 62." 23 The defendant submitted that a review by an appellate court of discretionary judgment under the principles in House v The King does not, without more, involve "a question of law alone". This was because most discretionary judgments involve the attribution of weight to relevant considerations which was a decision of fact. What was said by McColl JA in the Director of Public Prosecutions v Sami El Mawas [2006] NSWCA 154 at [81]-[84] was cited. 24 In the present case, the plaintiff does not solely rely on an assertion of manifest inadequacy for the contention that some error of principle must have occurred but asserts that the Magistrate made discrete errors. Those errors which are relied upon are: (1) failing to take into account, or have sufficient regard to, the aggravating factors listed in section 21A of the Crimes (Sentencing Procedure) Act 1999; (2) directing itself that the defendant should be sentenced on the basis that the offences charged did not constitute a single cause [sic] of conduct, but then sentencing for the offences other than individually and cumulatively; (3) sentencing for the offences before it, case numbers 1 to 9 as though they were on a schedule pursuant to s 52 of the Crimes (Sentencing Procedure) Act ; and (4) in characterising the defendant's conduct as, in respect of the cases before it, and each of them as being …at the lower end of the scale of seriousness." 25 I propose to defer a resolution of the defendant's contention that the present appeal does not involve a "question of law alone" until after consideration of the plaintiff's complaints of discrete error. 26 Although the first of the plaintiff's complaints is that the Magistrate failed to take into account the aggravating factors in s 21A of the Crimes (Sentencing Procedure) Act no factors of aggravation were identified as being present either to the Magistrate or this Court. This complaint has not been established. 27 The second complaint is that the Magistrate did not direct himself as to the proper approach for determining penalty when he said during his ex tempore sentencing remarks:

"I've considered whether or not it would be appropriate to deal with the matters on the basis of one course of conduct. Having considered the authorities in relation to that I am not of the view that I can properly do that,…,however, whilst for reasons best known to someone and I'm not quite sure who that would be this jurisdiction is not able to formally entertain matters on a schedule, that's how I propose to deal with these matters. I propose to deal with them on the basis that any penalty imposed is on the 10th matter and the other 9 I will deal with as though they were on a schedule. It is my view that,…,that properly reflects the fact that the offences were not committed over a lengthy period or committed at various points in time over a longer period." 28 The plaintiff contended that his Honour's reasons are internally inconsistent. The second complaint was that the first error was compounded by dealing with offences 1 to 9 as though they were on a schedule. The defendant submitted that the Magistrate was seeking to punish for a single event of criminality which he did by convicting on all 10 offences but imposing a penalty only in relation to one. No error of law was involved as whether there was a single criminal episode involved a factual judgment. Whilst there were 10 occasions on which the trucks were overloaded, these all resulted from a single systems failure on the part of the defendant. It was next submitted for the defendant that the Magistrate's conclusion that he could not use a schedule was correct but for the wrong reason. Factoring in the correct reason, the Magistrate was obliged to conclude that procedure was not available which was, in fact, his conclusion. The error of law, the defendant contended, lacked any materiality. 29 The defendant's argument that the Magistrate was seeking to punish for a single act of criminality is not supported by his Honour's express rejection of the appropriateness of dealing with "the matters on the basis of one course of conduct." His Honour correctly recognised that each overload represented separate offending behaviour. What was said was consistent with the passage I have quoted at [11] from his Honour's judgment on liability. 30 Error arose in his Honour's approach to his sentencing task when he dealt with nine of the offences as though they were on a schedule. It seems that the Magistrate was referring to the taking into account by a court in dealing with an offender for a principal offence additional offences on a Form 1 under Division 3 of the Crimes (Sentencing Procedure) Act. Whilst the Form 1 procedure might be used infrequently in the Local Court, ss 32 and 33 of the Crimes (Sentencing Procedure) Act do not exclude the Local Court from the Form 1 procedure. In the present case, the procedure was not available as the defendant had neither admitted guilt for the offences nor had it indicated that it wanted the court to take them into account on a Form 1: s 33(2) Crimes (Sentencing Procedure) Act. Furthermore, the prosecutor had not filed a Form 1 in court in accordance with s 32. The proceedings had been defended and considerations by his Honour of the Form 1 procedure were simply irrelevant. 31 Although the Magistrate recognised (for the wrong reason) that the Form 1 procedure was not available, he nevertheless sought to deal with the offences as if that procedure had been adopted. His Honour's motive in taking this unorthodox approach was to reflect "the fact that the offences were not committed over a lengthy period or committed at various points in time over a longer period". How the adoption of the Form 1 procedure would reflect that fact is, to my mind, unclear. 32 It appears that his Honour then unilaterally identified offence 10 as the principal offence. In adopting this approach, his Honour was obliged to have regard to settled principle that the sentence for the principal offence should not be only slightly increased if the offences to be taken into account on the Form 1 are serious in their own right: R v Barton (2001) 121 A Crim R 185; Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 per Spigelman CJ at [42]. The nine offences which were treated as being on a schedule were severe risk breaches. 33 The penalty imposed for offence 10 did not reflect the seriousness of the ten offences. His Honour erred in law by dealing with the other nine offences as though they were on a schedule. Whilst his Honour's error in considering that the Form 1 procedure was not available in the Local Court, as the defendant contended, lack any materiality, his error in dealing with the offences as if they were on a Form 1 underpinned the ultimate manifest inadequacy of the sentence. 34 The Magistrate was required to consider what was an appropriate penalty for each offence. Having done so, he was obliged to consider what the appropriate penalty should be applying the principle of totality. This, with respect, his Honour failed to do and his Honour erred in law. The principle of totality enunciated by the High Court in Pearce v The Queen (1998) 194 CLR 610 is applicable where the penalty imposed is by way of fine: Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 per Kirby P at 704. 35 Chapter 3 of the Act provides for a risk-based categorisation of mass, dimension and load restraint offences. For the purpose of the Act, breaches of mass, dimension or load requirement are categorised as a minor risk, substantial risk or severe risk breaches. s 33(1) of the Act is as follows: " Mass requirement A breach of a mass requirement is a severe risk breach if the subject-matter of the breach is equal to or greater than the lower limit for a severe risk breach of the requirement." 36 The lower limits for a severe risk breach of mass or dimension requirements is found in Subdivision 2. Section 34(3) provides: " Severe risk breach The lower limit for a severe risk breach of a mass requirement to which this section applies is 120% of the maximum permissible mass, rounded up to the nearest 0.1 tonne. NOTE: 120% of the maximum permissible mass is equivalent to the permissible mass plus an additional 20%." 37 Each of the overloads for which the defendant came to be sentenced was a severe risk breach as the overload was greater than 120% of the maximum permissible mass. 38 The classification of a breach as minor", substantial or severe determines the maximum available penalties, s 59 and Table to Division 4. It also impacts upon the matters which a court is to take into consideration on sentence. 39 Section 60 which falls within Division 5 of the Act provides: " Matters to be taken into consideration by courts (cf model provisions, s 97) (1) The purpose of this section is to bring to the attention of courts the general implications and consequences of breaches of mass, dimension or load restraint requirements when determining the kinds and levels of sanctions to be imposed. (2) In determining the sanctions (including the level of fine) that are to be imposed in respect of breaches of mass, dimension or load restraint requirements, a court is to take into consideration the classification of the breach under this Part and, having regard to that classification, the following matters: (a) minor risk breaches involve either or both of the following: (i) an appreciable risk of accelerated road wear, (ii) an appreciable risk of unfair commercial advantage, (b) substantial risk breaches involve one or more of the following: (i) a substantial risk of accelerated road wear, (ii) an appreciable risk of damage to road infrastructure, (iii) an appreciable risk of increased traffic congestion, (iv) an appreciable risk of diminished public amenity, (v) a substantial risk of unfair commercial advantage, (c) severe risk breaches involve one or more of the following: (i) an appreciable risk of harm to public safety or the environment, (ii) a serious risk of accelerated road wear, (iii) a serious risk of harm to road infrastructure, (iv) a serious risk of increased traffic congestion, (v) a serious risk of diminished public amenity, (vi) a serious risk of unfair commercial advantage. (italics added) (3) Nothing in this section affects any other matters that may or must be taken into consideration by a court. (4) Nothing in this section authorises or requires a court to assign the breach to a different category of breach. (5) Nothing in this section requires evidence to be adduced in relation to the matters that are to be taken into consideration by a court pursuant to this section." 40 The purpose of s 60 is to bring to the attention of courts when considering an appropriate sentence the consequences of a failure to comply with a breach of mass, dimension or load restraint requirement. The matters to which a court is required by s 60(2) to have regard depends upon the classification of the risk breach as a minor, substantial or severe. The matters which a court is required to consider by the Legislature for a severe risk breach are necessarily very different to those for a minor risk breach. The requirement that regard be had to an appreciable risk of harm to public safety is exclusive to sentencing for a severe risk breach: s 60(2)(c)(i). For a severe risk breach it is the seriousness of the risk which distinguishes those matters detailed in subparagraphs (ii)-(vi) from the matters to be considered for a substantial risk breach: s 60(2)(b)(i)-(v). Nothing in s 60 affects any other matter that a court may consider when sentencing an offender such as s 3A of the Crimes (Sentencing Procedure) Act which sets out the purposes for which a court can impose a sentence and s 21A of the same Act which provides for aggravating and mitigating factors. 41 As each of the offences was a severe risk breach, his Honour was obliged in determining the appropriate fine for each offence to have regard to each of the matters in s 60(c)(i)-(vi) which was relevant to the defendant's offending. The overloads which are exposed in the table at [15] required his Honour to give careful regard, in my opinion, to the following matters: (i) an appreciable risk of harm to public safety, (ii) a serious risk of accelerated road wear, (iii) a serious risk of harm to road infrastructure, (vi) a serious risk of unfair commercial advantage. 42 His Honour remarked when referring to "authorities… dealing with other prosecutions by statutory authorities…that one should, when considering these matters, consider the issues of general deterrence and the issues of public interest which are involved". There was no mention by his Honour that regard had been had to the classification of the offences as severe risk breaches or to any of the matters in s 60(2)(c). Whilst I appreciate that his Honour's sentencing remarks were delivered ex tempore the absence of even a passing reference to s 60 or to the classification of the offences as severe risk breaches suggests that these matters were overlooked. His Honour's resolution to treat nine of the offences as if they were on a schedule may have contributed to this oversight. Regrettably, little assistance was provided by the legal representative who appeared for the plaintiff and his Honour's attention was not directed to Division 5 of the Act. 43 By failing to have regard to s 60 of the Act, his Honour, with respect, made an error of law. 44 His Honour, it appears, seemed to have attached little weight to general deterrence even though he made reference to it. Greater weight is to be given to considerations of general and specific deterrence, in my view, when the offence involves a severe risk breach and there is more than one such offence. 45 A further discrete error which was relied upon by the plaintiff was the characterisation by the Magistrate of the defendant's involvement as being at the lower end of the scale of seriousness. It was submitted that such a characterisation was not open to his Honour in the context of severe risk breaches. Should the Magistrate be taken, it was argued, to have accepted that the defendant's culpability was to be assessed as vicarious rather than direct, then his Honour misapprehended the nature of the liability for which he was sentencing. The defendant submitted that the classification of an offence as a severe risk breach did not by itself establish the seriousness of the offence. As the defendant was not a consignor in the ordinary sense but was the consignor only by reason of having left the vendor of the property in possession of the premises and allowing him to harvest the wheat it was contended that these were breaches at the lower end of the scale of severe risk breaches. 46 The Magistrate's finding that the offences fell at the lower end of the scale of objective seriousness was essentially one of fact. As was explained by Simpson J in R v Johnson [2004] NSWCCA 140 at [36]: "For the Crown to succeed on this aspect of the appeal, it is necessary that it establish that the finding, which is essentially one of fact, was not open to his Honour. The finding, being an evaluation, is akin to an exercise of discretion and may only be held to be wrong if it can be shown that some wrong principle was applied, or irrelevant consideration taken into account (or a relevant consideration overlooked) or that the finding itself simply was not open on the evidence: House v The King (1936) 55 CLR 499. 47 It is unclear, with respect, from what was said by his Honour whether he found that the defendant's offending was at the lower end of seriousness of all classes of breach of mass requirements or that his finding was confined to those classified as severe risk breaches. Given the scheme of the Act, and the nature of the offence a finding of the offences being at the lower end of the scale of all classes of breach was not open on the evidence. The lack of reference to s 60 of the Act or to a severe risk breach indicates that such a finding was made. 48 During the proceedings on sentence, the legal representative for the defendant submitted that the defendant's failure to supervise the performance of the contract of the carriage of goods was not blameworthy enough in the particular circumstances to render the defendant liable to conviction. It was said that Mr Fletcher was in Dubbo at the time of the offences attending to the defendant's business and that the defendant was entitled to expect that Kidmans, a well respected public company, would do its job properly and according to law. The relationship between the defendant and "the principal offender, namely the independent transport drivers and operators" was, it was submitted, "twice removed". 49 As I have recounted at [9] his Honour had rejected in the judgment on liability the contention that the defendant was simply entitled to rely on Kidmans. This was a finding of fact which his Honour would have been expected to have taken into account in assessing the objective seriousness of the offences. The defendant was not a stranger to the heavy transport industry. The defendant's legal representative told his Honour during sentencing submissions that the defendant was: "…the largest processor of coned wool and exports wool to 14 countries. Now annually it's estimated that Fletchers load onto ships something in excess of 7,000 containers to take product, largely meat and wool, to over 100 countries and if you were to put those containers length by length I understand it would come to about 77 kilometres of containers. They have at least 6,000 livestock trucks bringing sheep from around Australia to plants each year." 50 As the consignor of vast quantities of goods by road the defendant should have been aware of the obligations imposed upon it by the Act. It was not, in the circumstances, a mitigating factor that the deliveries were made by Kidmans. The defendant as the consignor was obliged to ensure that the overloads did not occur and could not, as his Honour found in his judgment on liability, turn a blind eye to whether the trucks delivering the grain to GrainCorp were overloaded or not. 51 During the second reading speech of the Road Transport (General) Bill in the Legislative Council on 6 April 2005, Mr Costa, the Minister for Roads said: "Under the new regulatory framework, those other parties in the transport chain who by their actions, inactions or demands put drivers and other road users at risk and gain unfair commercial advantages may also be committing an offence and be liable to substantial penalties. In practical terms, this means that it is essential that all parties to the chain of responsibility - consignors, packers, loaders, operators, drivers and in some cases consignees - need to be aware of the requirements of road transport law particularly relating to mass, dimension and load restraint. They also need to have active systems in place to manage these risks to minimise the chance of road transport laws being breached." (Hansard, Legislative Assembly, 6 April 2005 at 15050) 52 It is apposite to note that the maximum penalties for a consignor are the same as those to be imposed on a packer, loader, operator or driver: s 59 and Table. 53 It was not suggested that the offences involved an actual risk to public safety or that the road or road infrastructure had actually been damaged. Neither was it said that the offences were planned by the defendant nor committed by it for financial gain. The presence of any of these factors might enhance to my mind the objective seriousness of a severe risk breach. Although a finding of the offences being at the lower end of the scale of all classes of breach was not open on the evidence, it was open to the Court to find that the defendant's offending was at the lower end of the scale of severe risk breaches. 54 There is no complaint by either party of the Magistrate's assessment of the defendant's record as being "not a bad record". He had referred to a history of three other matters, two in 1994 and one in 2000. His Honour took into account the large number of heavy vehicles and the many miles which were driven each year. 55 The maximum penalty which has been legislated by Parliament was not irrelevant to his Honour's sentencing task. The maximum penalty serves as a yardstick or as a basis of comparison between the case before the Court and the worst possible case: Markarian v The Queen (2005) 79 ALJR 104 at [31]. The sentence imposed suggests, with respect, that his Honour paid little regard to the maximum penalties which were available.

56 It is necessary to consider whether the offences after 13.14pm on 22 November 2005 (case 6) were for the purposes of the Act "second or subsequent" offences with the consequential increase of the maximum penalty in the Local Court to 500 penalty units. 57 Section 96 of the Act provides: "Provisions relating to first offences and second or subsequent offences (1) Application of section This section has effect for the purpose of determining whether an offence is a first offence or a second or subsequent offence for the purposes of determining the maximum penalty for an offence under Part 3.3. (2) Separate occasion of second or subsequent offence A person is found guilty of a second or subsequent offence if and only if the occasion in respect of which the second or subsequent offence occurred was different from the occasion in respect of which the first offence from which the person was found guilty occurred. (3) Order in which offences actually committed is immaterial It is immaterial in which order the offences were committed. (4) Risk category is immaterial In the case of offences relating to mass, dimension or load restraint requirements, it is immaterial whether the breaches concerned are of the same risk category or of different risk categories. (5) Offence to be treated as first offence in cases of uncertainty If the Court is satisfied that a person is guilty of an offence but is unable to ascertain (from the information available to the court) whether or not the offence is a first offence for which the person was found guilty, the court may impose a penalty for the offence only as if it were a first offence. (6) Offences under corresponding applicable road laws In determining whether a person has been found guilty of an offence previously under a provision of an applicable road law, regard is to be had to finding of guilty for offences committed under corresponding provisions of the applicable road laws of other jurisdictions." 58 In short the plaintiff argued that the word "occasion" in s 96(2) means the incident giving rise to the prosecution and finding of guilt. The defendant submitted, on the other hand, that the word "occasion" in s 96(2) should be read as meaning an "occasion of prosecution". 59 The defendant's approach to the construction of s 96(2) is consistent with the longstanding principle of statutory interpretation that provisions in penal statutes for an increased penalty for a second or subsequent offence are only to apply if there has been a conviction for the first offence before the commission of the subsequent offence. As Burbury CJ in O'Hara v Harrington [1962] TAS SR 165 explained at 169: "But Lord Coke , that great 17th century judicial defender of the rights of the individual, said over three centuries ago that a man may not lawfully be subjected to an increased statutory penalty as for a second offence unless he had deliberately broken the law again after being convicted and receiving punishment for a first breach of it. The law has been taken to be so settled ever since. This three century old canon of construction of penal provisions of this kind is broadly based on the principle and does not depend upon the precise language used in a statute. It ought not to be excluded unless the legislature has plainly said so." 60 The same reasoning has been applied notwithstanding the use of different language in different penalty provisions: see for example Samuels v McKenzie (1979) 23 SASR 595; Rivera v Maher (1992) Tas R 228; Police v Nowak [2002] SASC 82; Reid v Rowbottam [2005] NTSC 7. The application of the principle, however, turns upon the construction of the particular statute. The question is whether the Legislature intended to displace the principle by the enactment of s 96(2). 61 The first observation to be made is that the language in s 96(2) is dissimilar to those penal provisions which have the subject of discussion in cases such as O'Hara. The subsection does not speak of "convictions". The key words in the subsection are the noun "occasion" and the verb "occur". It was submitted for the defendant that the legislation could not have intended the "occasion" to be the same as the "occurrence" as that would amount to surplusage. In my view, the noun "occasion" has independent work to do in the subsection. One of the dictionary meanings of the noun "occasion" is "a particular time, especially as marked by certain circumstances or occurrences": Macquarie Dictionary Fourth Edition. The verb "occur" means "to come to pass, take place or happen": Macquarie Dictionary Fourth Edition Applying the dictionary meaning to the subsection, a person is found guilty of a second or subsequent offence if and only if [the particular time] in respect of which the second or subsequent offence [happened] was different from the [particular time], in respect of which the first offence for which the defendant was found guilty [happened]. There is no surplusage. 62 The conjunction of "occasion" and "occurred" in subsection 2 focuses on the time of offence rather than on the time of a finding of guilt [or conviction]. The Legislature has plainly indicated, to my mind, its intention to depart from the principle stated in O'Hara. I do not agree with the defendant's submission that the word "occasion" in s 96(2) should be read as meaning an "occasion of prosecution". 63 Subsection 3 complements subsection 2 as it is irrelevant in which order the offences were committed. The principle stated in O'Hara applies when an offender has on a previous occasion been convicted of a first offence after the commission of a second offence. Under subsection 3, an offender does not escape the higher penalty merely because a latter offence was dealt with prior to an earlier offence. 64 As the table at [15] demonstrates, case no 1 took place at 13.39pm on 22 November 2005. This was the second offence. Case numbers 2, 7, 3, 8, 4, 9, 5 and 10 followed thereafter. These are subsequent offences. The maximum penalty I conclude for the offences other than case no 6 is 500 penalty units. 65 In the present case, a number of errors of law have been identified which have resulted in a sentence which is manifestly inadequate. The scope of this review has been confined to questions of law alone. The defendant's contention that the appeal did not involve a question of law alone has not been established. 66 When a court is re-sentencing after error has been demonstrated by the Crown, the sentence imposed will generally be towards the bottom of the available range. 67 Although the plaintiff has been successful in demonstrating error, the Court has a 'lively discretion' to refuse to intervene. In deciding whether to exercise that discretion, the Court has regard to double jeopardy and the approach taken by the plaintiff's legal representative before the Magistrate. 68 During the proceedings on sentence, the Magistrate was told by the legal representative for the plaintiff that the maximum penalty for the offence was "some ridiculous amount of money". This is a matter the defendant submitted might activate the Court's discretion not to intervene. Whilst the egregiousness of what was said to his Honour cannot be disputed, the degree to which his Honour fell into error was substantial: R v Allpass (1993) 72 A Crim R 651. Furthermore this was not a case where the plaintiff remained silent when a submission had been made that a non-custodial sentence should be imposed: see, for example, Everett v The Queen (1994) 181 CLR 295. These were proceedings in a country court house where, it seems, as is often the case that a local practitioner had been engaged to appear for the plaintiff. This is not a case in which the Court ought to exercise its discretion not to intervene.

69 Whilst I have characterised each of the offences as being at the lower end of the scale of a severe risk breach, each of the offences is serious and substantial fines will need to be imposed. The defendant is entitled to the benefit of a good record. Each sentence, as this is a successful Crown appeal, will be towards the bottom of the available range. In accordance with the principle of totality, it is necessary to consider an appropriate penalty for each offence and then having regard to the totality of the criminality ensure that the overall penalty is just and appropriate.

70 In re-sentencing the defendant, it is convenient to use the case numbers provided in the table at [15]. 71 I make the following orders: 1. Quash the sentences imposed by the Magistrate in the Local Court at Condobolin on 18 December 2007; 2. Sentence the defendant as follows: Case number 6: The defendant is convicted and fined $4,500; Case number 1: The defendant is convicted and fined $5,000; Case number 2: The defendant is convicted and fined $5,000; Case number 7: The defendant is convicted and fined $5,000;

Case number 3: The defendant is convicted and fined $5,000; Case number 8: The defendant is convicted and fined $5,000; Case number 4: The defendant is convicted and fined $5,000;

Case number 9: The defendant is convicted and fined $5,000; Case number 5: The defendant is convicted and fined $5,000; Case number 10: The defendant is convicted and fined $5,000.

Confirm the order of the Magistrate that the defendant pay the plaintiff's professional costs of $2,665 together with court costs of $70.

Being a Crown appeal, I make no other order as to costs.

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