Transport for New South Wales v De Paoli Transport Pty Ltd

Proceedings 2022/00082090: Transport for New South Wales (Appellant) Jonathon De Paoli Nicholas De Paoli (Respondent) Representation: Counsel: M Cahill (Appellant)

Solicitors: Sparke Helmore Lawyers (Appellant) Submitting appearance (Respondents) File Number(s): 2022/82036, 2022/82058, 2022/82090 Publication restriction: None Decision under appeal Court or tribunal: Local Court of NSW Jurisdiction: Criminal Date of Decision: 10 December 2021 File Number(s): 2021/147647; 2021/147642; 2021/146949

Judgment

1. The appellant, Transport for New South Wales, pursues appeals pursuant to s 56(1)(a) of the Crimes (Appeal and Review) Act 2001 (NSW) in respect of sentences imposed on each of the respondents in the Local Court in respect of offences under the Heavy Vehicle National Law (NSW) ("the HVNL").
2. The appeals are in relation to three separate respondents in related proceedings. Respectively, they are: 1. De Paoli Transport Pty Ltd (the respondent in proceedings no. 2022/00082036) ("the Company"), being a line-haul trucking company; 2. Mr George De Nicholas De Paoli (the respondent in proceedings no. 2022/00082058) ("George De Paoli"), being the sole director and shareholder of the Company, but who was convicted in his capacity as a scheduler; and 3. Mr Jonathon Nicholas De Paoli (the respondent in proceedings no. 2022/00082090) ("Jonathon De Paoli"), being an employee of the Company. He was also convicted in his capacity as a scheduler.
3. On the hearing of the application and the summons, Mr Cahill appeared for the appellant. Each respondent filed a submitting appearance.

The sentences

1. At the conclusion of the submissions by the parties, the learned magistrate delivered a short ex-temp sentencing judgment. Of course, that is no doubt often necessary and appropriate in a busy list in the Local Court. This Court should have regard to the necessity of Magistrates to deliver ex-tempore judgments immediately after submissions.
2. However, the appellant does not complain about the timing or way in which the sentencing judgment was delivered but rather the content. The learned Magistrate must exercise the sentencing discretion in accordance with law.
3. At the end of his Honour's remarks on sentence and after allowing for the 25% discount on account of the early plea, his Honour imposed the following penalties: 1. The Company - $15,000 2. George De Paoli - $6,000; and 3. Jonathon De Paoli - $3,000.

The nature of the appeal

1. As set out in s 56(1) of the Crimes (Appeal and Review) Act, the Prosecutor may appeal to the Supreme Court against a sentence imposed by the Local Court only on a ground that involves a question of law alone.
2. The appellant identifies eight grounds of appeal as follows: 1. The penalty imposed is manifestly inadequate. 2. The Magistrate misdirected himself on the test to be applied when assessing the objective seriousness of the offences. 3. The Magistrate misdirected himself on the test to be applied when assessing the culpability of the respondents. 4. The Magistrate took into account irrelevant considerations when assessing the appropriate sentences. 5. The Magistrate failed to have regard to relevant considerations when assessing the appropriate sentences. 6. The Magistrate failed to have regard to specific deterrence. 7. The Magistrate failed to have regard to general deterrence. 8. The errors materially affected the penalties imposed.
3. A "question of law" is a broader term than "error of law". [1] However, the term "a question of law alone" may not encompass a question of mixed fact and law.
4. Whilst Grounds 2 to 7 would appear to involve "a question of law alone", an appeal based on manifest inadequacy (or manifest excess) may not be an appeal on a question of law alone. It may depend upon whether the appellant identifies discrete errors of law in the approach of the learned Magistrate or merely specifies that the sentence is so inadequate (or excessive) that, although no actual error can be identified, there must have been some error of principle on the part of the Magistrate.
5. In some cases, the imposition of the sentence may be affected by the fact‑finding, including findings of fact which are said to be erroneous or errors in questions of mixed fact and law. Errors of that type which lead to excessive or inadequate sentences might not give rise to an appeal on a question of law alone. Similarly, an appeal based on the weight to which the Magistrate gave relevant factors would not be an appeal based on a question of law alone.
6. Having said that, in some cases, such as this case, the reason for manifest inadequacy or manifest excess might be the identification of specific errors of law as part of the sentencing process. For example, a misdirection as to the proper test to be applied when sentencing for a particular offence or taking into account irrelevant considerations and failing to take into account relevant considerations would constitute an appeal on a question of law alone.
7. I need not say more in this matter as I am satisfied that the appeal pursued by the appellant raises questions of law alone, in a number of different ways.

The circumstances of the offending

1. For the purposes of the sentence hearing, the parties provided a statement of agreed facts, although a second statement of agreed facts was provided following comments by the learned Magistrate. In reality, all of the relevant facts were agreed.
2. The respondents relied on the affidavits of George De Paoli (dated 9 December 2021) and Jonathon De Paoli (dated 3 December 2021), which were particularly relevant to the issues of contrition and steps taken by the respondents to improve their systems and comply with the HVNL.
3. As all of the facts are of some relevance to the appeal and any resentencing, I include in this judgment the whole of the second statement of agreed facts ("the agreed facts"): BACKGROUND FACTS 1. De Paoli Transport Pty Ltd (ACN 120 262 286) (De Paoli Transport) is an entity that operates a fleet of fatigue regulated heavy vehicles. 2. At all material times, between 21 May 2019 and 30 March 2021, De Paoli Transport: a. was a line-haul trucking company, with an office located at 12 McKay Avenue, Leeton NSW 2705; b. operated 32 fatigue regulated heavy vehicles including heavy vehicles with NSW registration numbers XN40CN, BV80ZZ, BR80RN, BV12ZA, CH40EL and XN09AH; c. engaged a number of drivers for heavy vehicles, including Mark Johnson, Paul Halls, Casey Randall, and Paul Williams; and d. was a party in the chain of responsibility as a road transport operator and employer. 3. Mr George De Paoli Nicholas De Paoli (George De Paoli) was the sole director and shareholder of De Paoli Transport and was responsible for scheduling drivers to carry out deliveries to and from Leeton and Brisbane. George De Paoli was assisted by: a. Jonathan Nicholas De Paoli (Jonathon De Paoli). Jonathon De Paoli was responsible for scheduling drivers' trips to and from Leeton, Sydney and Melbourne; b. Shelley Davidson as the administration clerk. CHARGES De Paoli Transport 4. De Paoli Transport is a party in the chain of responsibility under the HVNL in that it is an employer of drivers and an operator of heavy vehicles. 5. As a party in the chain of responsibility, it has a duty to ensure, so far as reasonably practicable, the safety of transport activities. 6. Between 21 May 2019 and 30 March 2021 De Paoli Transport failed to do so in that: A. It failed to provide and maintain adequate systems for: I. continuously assessing and reviewing risks within their transport operations; II. ensuring drivers had current and valid driving licences; III. implementing safe driving plans for trips taken by drivers capable of assisting drivers to understand what breaks they had to take during the trip; IV. ensuring each driver's fitness to drive was verified by a manager and/or supervisor prior to each trip; V. ensuring drivers were not speeding; VI. ensuring drivers were not driving in breach of their work/rest hours; VII. safely scheduling drivers; VIII. ensuring drivers reported notices issued to the drivers by police and/or Roads and Maritime Services (now Transport for NSW) relating to the heavy vehicles being driven by the drivers. B. It failed to provide adequate training to drivers: i. regarding driver fatigue ii. on how to correctly calculate their drive and rest hours iii. on how to correctly fill out their log books iv. on policies and procedures relating to speeding v. on policies and procedures relating to fatigue. 7. Those failures exposed the drivers of the heavy vehicles and the public to a risk of death or serious injury as a result of drivers losing control of their heavy vehicle. George De Paoli De Paoli 8. George De Paoli De Paoli is a party in the chain of responsibility under the HVNL in that he is a scheduler of drivers and heavy vehicles. 9. As a scheduler, George De Paoli De Paoli has a duty to ensure, so far as reasonably practicable, that drivers' trips are safe. 10. Between 21 May 2019 and 30 March 2021 George De Paoli De Paoli failed to do so in that he did not: i. Ascertain whether drivers had secondary employment that may have impacted on their level of fatigue. ii. Provide drivers with safe driving plans to assist the drivers to understand what breaks they had to take during their trip. iii. Verify each driver's fitness to drive, prior to each trip, by questions designed to understand the driver's level of fatigue. iv. Make sure scheduling took into consideration any drivers returning to work from leave. v. Require drivers to inform anyone of any delays encountered so as to allow these issues to be factored in when scheduling subsequent trips. vi. Make sure scheduling took into consideration any delays encountered by drivers. vii. Make sure drivers were not driving in breach of their work/rest hours; viii. Refer to and use a functioning GPS system to ascertain driver working hours when scheduling trips. ix. Make sure drivers had correctly calculated work and rest hours prior to scheduling their trips. x. Make sure drivers had correctly filled out their log books prior to scheduling their trips. Jonathon De Paoli 11. Jonathon De Paoli is a party in the chain of responsibility under the HVNL in that he is a scheduler of drivers and heavy vehicles. 12. As a scheduler, Jonathon De Paoli has a duty to ensure, so far as reasonably practicable, that drivers' trips are safe. 13. Between 21 May 2019 and 30 March 2021 Jonathon De Paoli failed to do so in that he did not: i. Ascertain whether drivers had secondary employment that may have impacted on their level of fatigue. ii. Provide drivers with safe driving plans to assist the drivers to understand what breaks they had to take during their trip. iii. Verify each driver's fitness to drive, prior to each trip, by questions designed to understand the driver's level of fatigue. iv. Make sure scheduling took into consideration any drivers returning to work from leave. v. Require drivers to inform anyone of any delays encountered so as to allow these issues to be factored in when scheduling subsequent trips. vi. Make sure scheduling took into consideration any delays encountered by drivers. vii. Make sure drivers were not driving in breach of their work/rest hours. viii. Refer to and use a functioning GPS system to ascertain driver working hours when scheduling trips. ix. Make sure drivers had correctly calculated work and rest hours prior to scheduling their trips. x. Make sure drivers had correctly filled out their log books prior to scheduling their trips.

The appellant's submissions

1. The appellant identifies a number of observations or comments by his Honour during submissions and then during his Honour's remarks on sentence which, on the appellant's case, demonstrate errors on the part of the learned Magistrate.
2. The appellant says this is best demonstrated in the following observations of his Honour: "The best system in the world can, at most, minimise. It will never eliminate because as long as trucks are driven by humans, it will never minimise. As long as trucks are driven by humans on roads shared by all the other hat wearing caravan towers out there, it will never [be] eliminated. It will be minimised or, hopefully, minimised, but that's an aspirational goal, effectively, again, a conceptual framework, with impossibility as its benchmark, with the greatest respect … Anyway, leave that to one side. I'm not a trucking aficionado. In fact, I don't have much time for the matter, as such, but I'll put aside those feelings. I'm not a person in one camp or a person in the other camp, but I am a road user and have been for probably more than anyone else here in - perhaps, not everybody in the courtroom I've been there and done that and seen this and that. I'm aware of those things that minimisation, not elimination. No system in the world would eliminate something. Where do we see evidence of that? Every time you open your eyes in the morning, there it is in front of you. It's called life."
3. The appellant submits that the learned Magistrate failed to have regard to the difference between Category 2 and Category 3 offences. The appellant says that it is an element of a Category 2 offence that the breach of duty exposes the driver of the heavy vehicles and/or other persons to the risk of death or serious injury (s 26G of the HVNL). Category 3 offending does not include exposure of drivers of the heavy vehicles and/or other persons to risk of death or serious injury. The appellant submits that the structure of the HVNL and the differentiation between the three categories of offending is relevant to both a proper understanding and a proper assessment of the objective seriousness of the subject offending. [2]
4. The appellant submits that the learned Magistrate made a passing reference to the use of maximum penalties as guideposts but did not refer to the differing maximum penalties applicable to the differing charges laid as against the Company and the respondents in person.
5. The appellant submits that the learned Magistrate also failed to properly identify and properly distinguish the difference between the transport activity which formed the subject matter of the charge as against the Company and the transport activity that formed the basis of the charge as against each of the respondents in person.
6. Further, the appellant submits that the learned Magistrate failed to properly identify and distinguish between the nature and extent of the respondent's failures/breaches of duty. As against the Company, the appellant asserted systems and training breaches (see par 6 of the agreed facts). As against the individual respondents, the appellant only particularised scheduling breaches (see pars 10 and 13 of the agreed facts as against each respondent respectively).
7. George De Paoli was the founder and the sole director of the Company. However, as noted above, George De Paoli was charged solely in his capacity as a scheduler and not in his capacity as a director of the Company.
8. Jonathan De Paoli was also charged in his capacity as a scheduler.
9. The appellant also submits that the learned Magistrate failed to have regard to the particular role which is to be played by both general deterrence and specific deterrence in securing the objects of this type of safety legislation. [3]
10. Finally, the appellant submits that the fines imposed on the respondents are so low that, even without any particular error, it must be that the learned Magistrate failed to take account of relevant matters in exercising the sentencing discretion. [4]

Heavy Vehicle National Law

1. The HVNL commenced in NSW on 10 February 2014. As set out in s 3, the object of the law is to establish a national scheme for facilitating and regulating the use of heavy vehicles on roads in a way that: 1. promotes public safety; and 2. manages the impact of heavy vehicles on the environment, road infrastructure and public amenity; and 3. promotes industry productivity and efficiency in the road transport of goods and passengers by heavy vehicles; and 4. encourages and promotes productive, efficient, innovative and safe business practices.
2. The object of the law is achieved by a regulatory framework (s 4). It includes the imposition of duties and obligations directed at ensuring heavy vehicle operators and drivers of heavy vehicles comply with the requirements (as set out in s 4(c)) on persons whose activities may influence whether the vehicles or drivers comply with the requirements.
3. The prescribed requirements include: 1. The standards heavy vehicles must meet when on roads; 2. The maximum permissible mass and dimensions of heavy vehicles used on roads; 3. Securing and restraining loads on heavy vehicles used on roads; 4. Preventing drivers of heavy vehicles exceeding speed limits; 5. Preventing drivers of heavy vehicles from driving while fatigued.
4. Safety duties are set out in Ch 1A of the HVNL. Section 26A provides that the safety of transport activities relating to a heavy vehicle is the shared responsibility of each party in the chain of responsibility for the vehicle. The level and nature of a party's responsibility depends on the functions the person performs or is required to perform, the nature of the public risk created by the carrying out of the transport activity and the party's capacity to control, eliminate or minimise the risk.
5. Section 26C sets out the primary duty imposed upon each party in the chain of responsibility: (1) Each party in the chain of responsibility for a heavy vehicle must ensure, so far as is reasonably practicable, the safety of the party's transport activities relating to the vehicle. (2) Without limiting subsection (1), each party must, so far as is reasonably practicable - (a) eliminate public risks and, to the extent it is not reasonably practicable to eliminate public risks, minimise the public risks; and (b) ensure the party's conduct does not directly or indirectly cause or encourage - (i) the driver of the heavy vehicle to contravene this Law; or (ii) the driver of the heavy vehicle to exceed a speed limit applying to the driver; or (iii) another person, including another party in the chain of responsibility, to contravene this Law. (3) For subsection (2)(b), the party's conduct includes, for example - (a) the party asking, directing or requiring another person to do, or not do, something; and (b) the party entering into a contract - (i) with another person for the other person to do, or not do, something; or (ii) that purports to annul, exclude, restrict or otherwise change the effect of this Law.
6. The obligation on each party in the chain of responsibility is thus to ensure, so far as is reasonably practicable, the safety of the party's transport activities relating to the vehicle. Section 26C(2) sets out the obligation on each party in a non-exclusive way. The obligation is to eliminate public risks and, to the extent that it is not reasonably practicable to eliminate public risks, minimise the public risks.
7. The scheme of the HVNL is thus to impose a primary duty on all persons in the chain of responsibility. If a person in the chain of responsibility fails to comply with the duty, then that person may be guilty of an offence. Whether the offence is a Category 1, Category 2 or Category 3 offence depends on the nature of the offending.
8. A Category 1 offence is only established if the prosecutor establishes that the person contravened a primary duty and, without reasonable excuse, engaged in conduct that exposed an individual to a risk of death or serious injury or illness and was reckless as to the risk (s 26F).
9. A Category 2 offence is established only if the prosecutor establishes that the person contravened the primary duty and the contravention exposed an individual or class of individuals to a risk of death or serious injury or illness (s 26G).
10. In order to establish a Category 3 offence, it is not necessary for the prosecutor to establish that the contravention exposed an individual or class of individuals to a risk of death or serious injury or illness. It is only necessary to establish that the person had a duty under s 26C and that the person contravened the duty (s 26H).
11. In this matter, the Company entered a plea of guilty to a single Category 2 offence under s 26G.
12. As against the Company, the offence was described as follows: "…the [corporate] Defendant having a duty under section 26C of the … [HVNL], engaged in conduct related to that duty that exposed drivers of heavy vehicles and others to a risk of death or serious injury or illness, contrary to section 26G of the … [HVNL]".
13. The offending conduct is said to have occurred between 21 May 2019 and 13 March 2021. That is a period of 22 months.
14. Each of George De Paoli and Jonathon De Paoli entered a plea of guilty to a single Category 3 offence, being that: "… the Defendant, having a duty under section 26C of the … [HVNL], engaged in conduct that contravened that duty, contrary to section 26H of the … [HVNL]".
15. Again, the offending is said to have occurred during the continuous period of 21 May 2019 and 13 March 2021. Further, the charge relates only to each individual in their capacity as a scheduler of intrastate and interstate heavy vehicle operations, rather than as a director or officer of the Company. Neither the Company nor the individuals were charged with any Category 1 offences (the most serious offence).
16. Neither individual was convicted as a director or officer of the Company. They were convicted as schedulers of intrastate and interstate heavy vehicle operations.
17. When it entered a plea of guilty, the Company must be taken to have accepted that it contravened its primary duty and that its contravention exposed an individual or class of individuals to a risk of death or serious injury or illness. On the other hand, as the individuals entered pleas of guilty in respect of a Category 3 offence (as compared to a Category 1 or Category 2 offence), that involves acceptance only of the fact that they had a duty and contravened the duty, not that the contravention exposed anyone to a risk of death or serious injury or illness.
18. It is not necessary for the prosecutor to establish that anyone was actually killed or injured as a result of the conduct of the respondent. Categories 1 and 2 are risk-based offences. Category 3 only requires the prosecutor to establish non-compliance with a primary duty.

Principles to be applied when sentencing

1. The establishment of the National Scheme for facilitating and regulating the use of heavy vehicles has as its specific purpose the promotion of public safety and safe business practices.
2. The task of the Magistrate when sentencing in respect of offences under the HVNL is conventional. It requires a consideration of the objective seriousness of the offending and the circumstances of the respondent. The Magistrate is required to exercise the sentencing discretion according to law, having regard to the application of proper principles.
3. Different factors may impact upon the exercise of the sentencing discretion in different cases. The factors which will generally impact upon the sentencing exercise might normally include: 1. The category of offence with which the respondent has been charged; it is always necessary to have regard to the elements of the offence. For example, Category 1 involves not just the exposure of an individual to a risk of death or serious injury or illness but recklessness as to the risk. Category 2 requires the prosecution to establish that the contravention under s 26C exposed an individual to a risk of death or serious injury or illness. 2. The nature and extent of the contravention of the primary duty; for example, the failure to comply with the duty over an extended period involving multiple vehicles and different types of transgressions might be considered more serious than non-compliance over a limited period in limited ways. 3. The actual conduct of the respondent in failing to comply. By this I mean that conduct which demonstrates deliberate deceit or fabrication of records or falsifying documents or encouragement of drivers to not comply with fatigue management or speed rules will obviously be more serious than failures that arise through sloppiness, inadvertence or being unaware (not that any of that is any excuse). 4. The particulars of the failures when considered as a whole; for example, in this case, the failures are said to be both systemic, that is, the absence of any proper system and involve training failures. Each type of conduct is the subject of individual particularisation. It can be seen that the combined effect of all of those failures leads to the categorisation of the offending as more serious than if the prosecution had only alleged a failure in one respect. 5. Both the period over which the failures took place and the number of vehicles involved; that is because the combined effect of a failure to comply over an extended period with the operator sending multiple vehicles out onto the roadway without the drivers being properly trained and without a proper system must necessarily increase the risk to other users of the roadway including the drivers. 6. Whether the respondent acted quickly and thoroughly to remedy its non-compliance, although the weight that might be given to such a factor must be very much affected by the extent and nature of the offending in the first place. 7. The fact that the contraventions had not caused any injury or death or that the contraventions had caused injuries or deaths may be taken into account. However, bearing in mind that the offences are risk-based rather than dependent upon persons actually being injured or killed, the weight which might be given to the absence of prior accidents or injuries would be small. 8. Both specific and general deterrence are important factors in the exercise of the sentencing discretion. Plainly, the legislative scheme was introduced to improve safety on the roadway when it comes to heavy vehicles. The maximum penalty in respect of each of the offences reflects the seriousness of the contravening conduct. Persons operating in the industry must know that the Court and the community generally consider that the failures to take all practicable steps to ensure the safety of persons by those in the chain of responsibility will be viewed dimly by the Court and result in potentially significant penalties. Penalties which would operate only as a minor blip on the operation of a transport company (such as were imposed in this case) do not pay due regard to the importance of deterrence. 9. The maximum penalty is a yardstick and is a reflection of the legislature's views as to the seriousness of the offence but it is only one factor to be considered. [5] 10. The extent to which the respondent has shown contrition or remorse and the explanation for the contraventions of the primary duty. 11. Other mitigating or aggravating factors, which will be case specific, such as prior convictions.

Remarks on sentence

1. The matter came before the Court on a number of occasions. On the fifth occasion that the matter was listed before the Court (22 November 2021): 1. The Company entered a plea of guilty to the charge against it under s 26G of the HVNL. 2. George De Paoli entered a plea of guilty to the charge against him under s 26H of the HVNL 3. Jonathon De Paoli entered a plea of guilty to the charge against him under s 26H of the HVNL.
2. All other charges were withdrawn and dismissed. The matter was listed for sentencing on 6 December 2021.
3. The matter first came before the learned Magistrate on 6 December 2021.
4. After some discussion, the matter was stood over for sentencing on 10 December 2021.
5. Plainly, on a fair reading of the transcript, the learned Magistrate was concerned both about the agreed costs ($45,000) and the Crown's presentation of the case.
6. The learned Magistrate made a number of comments about those matters, seeming to link what his Honour viewed as the amount of costs (which his Honour considered excessive) to the inability of the Crown to answer his Honour's questions.
7. After ensuring that his Honour had all the submissions and evidence, the following exchange took place: BALDEO: That's the material and the evidence. HIS HONOUR: Is it fair to say that then summing all this acres and acres and acres of paperwork up, they ran the trucking company that didn't have all the paperwork? PARMEGIANI: No, your Honour, that's - that's only part of the - HIS HONOUR: What's the rest of it then because there's no evidence of accidents? PARMEGIANI: Yes, your Honour. HIS HONOUR: There's no evidence of speeding. There's no evidence of - and so it goes on. They didn't have the systems in place in a written or electronic form; is that right?
8. After some short further questioning, the solicitor for the respondent submitted: BALDEO: Yes, just in terms of what's fallen orally, firstly, it's accepted by reason of their pleas, that the respondents were not as proactive as they were required. It is, however, incumbent upon your Honour to make an assessment of the objective gravity, as well as their culpability and as your Honour has observed, this was a company and these were directors who did do things.
9. His Honour then sought information about the financial position of the Company as follows: BALDEO: Does your Honour seek some particular assistance on any particular matter? HIS HONOUR: Not really, apart from telling me what the financial position of the Company is which nobody has, because s 6 of the Fines Act requires you to find out. BALDEO: They're represented through their insurer. HIS HONOUR: I'm not sure that helps, really. BALDEO: It's a neutral factor which is why I'm not making a submission about it … .
10. After hearing submissions in reply on behalf of the Crown, the following exchange took place: HIS HONOUR: Do you drive a vehicle at all, Madam Crown? PARMEGIANI: I do, your Honour, yes. HIS HONOUR: So do I, over long distances and all sorts of places. I often wonder where some of the other idiots on the road got their licences from. Ergo, A doesn't necessarily equal B equals C. Unless the Crown can say that the accident was caused by causal factor and no other, then it's relevant. PARMEGIANI: Sorry, your Honour, I didn't mean to - HIS HONOUR: No, that's all right. I was trying to get it out. Yes.
11. There followed some further exchanges about other evidence, seemingly related to other types of conduct which might have been offending conduct, leading to the following exchange: HIS HONOUR: Yes. Conceptual is great. Practicality is also a measure of whether the conceptual thing has real life impact. That's the mitigatory part that Mr Baldeo was speaking of, is it not? BALDEO: Yes, your Honour. PARMEGIANI: Yes, your Honour, but if you're looking at the objective seriousness of the offence, I can only reiterate what was said by Basten J in Nash v Silver City. Your Honour would be committing an error in applying that logic, because it is not outcome based legislation. HIS HONOUR: I'm applying it in a mitigatory sense in relation to penalty. PARMEGIANI: Yes and that definitely does have a part - HIS HONOUR: That means also with the greatest respect to Basten J for whom I have great respect, evidence available from an outcome, if you don't have a safe work system, you have severed limbs, deaths, accidents, X, Y, Z and so it goes on. In the absence of a litany of disasters, apart from some argument over whether the accident was this, that or the other thing, then that would have to indicate that, perhaps, thereby, with the grace of God, De Paoli Transport managed to, somehow, muddled through which has to be a mitigating factor, does it not? PARMEGIANI: But the authorities have said that the absence of those things is not evidence of a good system. It is evidence of good luck rather than good measure.
12. Thereafter, the following exchange ensued: PARMEGIANI: Yes, your Honour, there was one factor. The duty of the respondents is to eliminate or minimise a risk. HIS HONOUR: True. The best system in the world can, at most, minimise. It will never eliminate because as long as trucks are driven by humans, it will never minimise. As long as trucks are driven by humans on roads shared by all the other hat wearing caravan towers out there, it will never [be] eliminated. It will be minimised or, hopefully, minimised, but that's an aspirational goal, effectively, again, a conceptual framework, with impossibility as its benchmark, with the greatest respect. I don't come from a trucking background. I've never driven - well, actually, I have driven a truck, but it got bogged in the gate. Anyway, leave that to one side. I'm not a trucking aficionado. In fact, I don't have much time for the matter, as such, but I'll put aside those feelings. I'm not a person in one camp or a person in the other camp, but I am a road user and have been for probably more than anyone else here in - perhaps, not everybody in the courtroom. I've been there and done that and seen this and that. I'm aware of those things that minimisation, not elimination. No system in the world would eliminate something. Where do we see evidence of that? Every time you open your eyes in the morning, there it is in front of you. It's called life. It's just one of those realities, I'm afraid. On a slight analysis, the Supreme Court has indicated in the old s 32, the Mental Health Forensic Provisions Act, that one of the goals was to prevent reoffending - as if that was ever achievable. God tried it in the Garden of Eden and failed miserably. Even though I often have delusions of grandeur, I'm not up at that level yet. I accept that they didn't have the paperwork and I accept that they didn't have the system, apart from the ramshackle country based systems that Mr George De Paoli De Paoli talks about, of which I recognise as being a person of his vintage, thinking was probably good enough and it clearly wasn't and I also take into account the things that they've done since as a mitigating factor.
13. During his Honour's remarks on sentence, the learned Magistrate again returned to the topic of the absence of any accident or injuries and then referred generally to the obligations under the law, suggesting that what the Company and the two respondents did was not good enough. His Honour went on to say that he had regard to the authorities and observed that, as the Company was now on the prosecutor's watchlist and was being monitored, it might be fair to say that they would now be doing the things that they should have been doing. His Honour considered that some of the mitigating factors that the Company had now put into place were measures that it should have implemented in the first place.
14. He then referred to the maximum penalties and that they were guideposts, observing: HIS HONOUR: When you have regard to the guide posts, it would appear that the Court of Criminal Appeal regards them as guide posts and that is the same approach that I will be taking in relation to this, informed as I am by the approach by the Court of Criminal Appeal in relation to matters that carry, for example, 25 years and the tariff is eight or [nine] and the tariff for some matters, there is four or five years and they have the temerity to lodge manifestly excessive appeals about, so one is informed by those matters.
15. Before again returning to the question of the costs, about which his Honour had commented on a number of occasions throughout his remarks as follows: HIS HONOUR: Just slowly read out to me, again, your outrageous amount of costs? PARMEGIANI: $45,000, your Honour. HIS HONOUR: I have written down, that is by consent? BALDEO: Yes, your Honour. HIS HONOUR: I am just making sure. BALDEO: It has been negotiated, yes. HIS HONOUR: Yes. That's very good. If the parties have agreed that that's the property costs order, the Court is loath to intervene.
16. Before imposing the following sentences: HIS HONOUR: … IN RELATION TO THE COMPANY, INSTEAD OF $20,000, AT 25%, THE COMPANY IS CONVICTED AND FINED $15,000. … HIS HONOUR: IN RELATION TO GEORGE DE PAOLI DE PAOLI, HE BEING THE DIRECTOR OF COMPANY, INSTEAD OF $8,000 AT 25%, HE IS NOW CONVICTED AND FINED $6,000 AND BECAUSE THE OTHER ORDER IS A GLOBAL ORDER, THERE IS NO ORDER AS TO COSTS. FOR JONATHON DE PAOLI, HAVING A LESSER ROLE IN THE COMPANY, INSTEAD OF $4,000, AT 25%, HE IS CONVICTED AND FINED $3,000 AND THERE IS NO ORDER AS TO COSTS BECAUSE OF THAT GLOBAL ORDER MADE.
17. There followed the following exchange: HIS HONOUR: There you go. Who said miracles still don't occur. If I wanted to do math, Madam Crown, I would have stayed awake at school. The other day, the staff had to point out to me that X and Z didn't equal 20. I had to adjust the sentence. I always let other people check on my maths. PARMEGIANI: Just ..(not transcribable).. of the fine, your Honour. BALDEO: Yes, your Honour, that's correct. HIS HONOUR: In all three matters? PARMEGIANI: Yes, your Honour. HIS HONOUR: To Transport New South Wales? PARMEGIANI: Yes, your Honour. HIS HONOUR: I also took into account that I noticed that Garling J imposed upon $5,500 as well. That was an assistance. PARMEGIANI: Your Honour, the maximum penalty under that piece of legislate was $27,000. HIS HONOUR: It was an assistance. That's what I said. Nothing more than that. PARMEGIANI: Yes, your Honour. HIS HONOUR: If you don't like it, Madam Crown, the District Court will welcome you with open arms, as you are entitled to appeal, just as the same as the Company and Mr De Paoli are entitled to appeal as well. Thanks for your help, each of you.

Determination

1. It is difficult to discern appropriate consideration of the factors relevant to the exercise of the sentencing discretion in his Honour's remarks.
2. Further, his Honour must be taken to have considered the absence of any accidents or injuries as a significant factor.
3. His Honour's suggestion that he found the penalty imposed under a different section in a different matter of assistance in circumstances in which the maximum penalty for that offence was only $27,000 is difficult to comprehend. Further, his Honour appears to have sentenced George De Paoli on the basis that he was a director of the Company.
4. In my view, his Honour's approach to the HVNL was erroneous. His Honour's emphasis on the absence of any accidents rather than the assessment of risk caused by the offending conduct was erroneous. His failure to have any proper regard to deterrence was erroneous. His Honour failed to consider the nature and extent of the failures of the primary duty. Further, the sentences were manifestly inadequate. The level of penalty was affected by both his Honour's own views as to the risks associated with heavy vehicles and whether reasonably practicable steps could have been taken to eliminate or reduce the risks.
5. It is difficult to understand how such minor sentences could reflect the purposes of the legislation or have due regard to any of the important sentencing principles for this type of offending.
6. It is thus only necessary to say that I accept that the appellant has established each of the grounds of appeal.
7. As set out in s 59 of the Crimes (Appeal and Review) Act, the Supreme Court may determine an appeal against sentence by: 1. setting aside the sentence, or 2. varying the sentence, or 3. dismissing the appeal.
8. As the appellant has succeeded in establishing the grounds of appeal in respect of the learned Magistrate's exercise of the sentencing discretion, then it will be necessary to set aside the sentences and impose new sentences. That is, I propose to vary the sentences in accordance with s 59(1)(b).
9. In these circumstances, it is necessary to resentence the respondents according to law. As I consider that the learned Magistrate erred in his approach to the exercise of the sentencing discretion in a number of ways, it is not merely a matter of adopting the findings of the learned Magistrate and then applying correct principle. However, nor is it necessary to merely reiterate all of the agreed facts. They are set out earlier in this judgment.

Sentence of the Company

1. The Company was convicted of a Category 2 offence. The prosecutor identified a number of particulars as to how the Company failed to comply with the primary duty set out in s 26C of the HVNL. The Company agreed that it: 1. Failed to provide and maintain adequate systems in the ways set out in subpars (i) to (viii) of par 6A of the agreed facts. 2. Failed to provide adequate training to drivers in the ways set out in subpars (i) to (v) in para 6B of the agreed facts.
2. Those systems and training failures were continuous for the period of 22 months between 21 May 2019 and 30 March 2021. During that time, the Company operated approximately 32 vehicles and was operating long-distance routes between Leeton and Brisbane, as well as to Sydney and Melbourne.
3. It is an agreed fact that those failures exposed the drivers of the heavy vehicles and the public to a risk of death or serious injury as a result of drivers losing control of their heavy vehicles. The failure of the Company to undertake all the particularised tasks was integral to the responsibility of the Company as an operator of heavy vehicles on the roadway to ensure the safety of the Company's transport activities relating to each vehicle. The failures were not minor or merely in relation to documentation.
4. Integral to the responsibility of an operator of a heavy vehicle is the obligation to take steps to ensure that its drivers are properly trained in managing driver fatigue. This does not merely involve training drivers how to fill out their logbooks but ensuring that drivers understand how to manage fatigue. Again, this necessarily must involve having adequate systems in place to ensure that drivers were both not speeding and were properly managing fatigue issues. Again, any such systems must ensure that drivers were not driving in breach of their work/rest hours.
5. These obligations are fundamental to ensuring the safety of the public because, as is well-known, speed and fatigue are major contributors to accidents, injuries and death on our roads. Although the Company vehicles had not been involved in any accidents or caused any deaths or injuries during the period, that is not a factor to which I give any significant weight in the circumstances of this matter. The Company's contraventions of the primary duty exposed persons to a risk of death or serious injury or illness, not on an occasional basis, but continuously over a 22 month period.
6. According to George De Paoli, the managing director of the Company, the Company started operating on 19 June 2006. Prior thereto it went by a different name, having commenced in 1987. George De Paoli has been part of the transport industry for approximately 40 years. Its core business is the transportation of agricultural produce. The heavy vehicles include semi-trailers and B-doubles. George De Paoli believes that he had done his best to manage and address risks and given directions to his employees verbally without documenting those directions. He accepts he could have done more. He also says that they did have a document, being the National Heavy Vehicle Accreditation Scheme ("NHVAS") Basic Fatigue Management Manual dated 24 June 2019, which addressed the issue of driver fatigue but only by stating that "a driver must not drive if not fit for duty". The Company also had a "What is fatigue" fact sheet and Driver Fatigue Management Policy dated 14 January 2009. However, the Company did not have a documented process for assessing the fitness of drivers prior to driving.
7. In August 2019, the Company installed 'Guardian Seeing Machines', being a fatigue detection device, in four of its trucks. Upon receiving a notification through the system, George De Paoli would call the driver to check whether they were tired. It took until September 2020 to install the Guardian Seeing Machines in all of the Company's vehicles. These devices are used only to detect fatigue and not other potential risks such as speeding. The Company also had a document titled "NHVAS Management Records, Weights and Verifications", in which the drivers were required to write their initials in a box if they were fit to work. However, the Company did not monitor these documents and drivers sometimes started their trips without having completed the documents.
8. The Company also installed GPS tracking systems in the Company's vehicles in 2013. However, George De Paoli states he was aware of issues with the accuracy and functionality of the GPS tracking. He also acknowledges that drivers were required to record their work/rest hours in diaries and logbooks but they did not always do it accurately. Ensuring that drivers both adhere to and record their compliance with fatigue management is surely integral to the safe operation of heavy vehicles on roadways.
9. I accept, based on George De Paoli's evidence, that the Company did have some measures in place, although they were plainly inadequate. I also accept that the contraventions were not deliberate attempts to circumvent or avoid responsibilities in respect of fatigue management and driver behaviour.
10. Jonathon De Paoli has had a number of roles in the Company, including management of the logistics for runs from Melbourne to Sydney. He acknowledges that the GPS system has been inaccurate. He says the Company did speak to drivers one-on-one and on an ad hoc basis about various issues but it did not have a formal training programme or any documented one-on-one training.
11. Both George De Paoli and Jonathon De Paoli say that they are now aware that they were not complying with the requirements of the HVNL. The following steps have now been taken: 1. Engaging a health and safety expert to conduct a review of safety processes and provide a report and recommendations. 2. Installing Guardian Seeing Machines in all of the trucks at a cost of $4,000 per vehicle plus monthly running costs. 3. Including safety checklists in driver paperwork. 4. Implementing new and additional safe driving plans. 5. Increasing reviews of driver compliance which has led to an increase in corrective action reports. 6. Requiring drivers to produce their drivers' licences every six months. 7. Requiring new starters to initial each page of their employment contracts, including safety requirements.
12. At the time of his affidavit of 3 December 2021, Jonathon De Paoli had undertaken a Fatigue Risk Management course with Queensland Transport and Logistics Training Pty Ltd. He was also completing other courses, such as a risk management course and getting qualified to carry out drug and alcohol testing. He said he was familiarising himself with the requirements of the HVNL.
13. I accept that the Company has taken steps to remedy its failures in the ways suggested.
14. Both George De Paoli and Jonathon De Paoli expressed remorse about their own failures to understand and ensure compliance with the HVNL.
15. The offending by the Company was not minor. It was serious offending under the HVNL. I would describe the offending as slightly below the mid-range.
16. I understand that the Company is insured and I will treat that (as it was suggested it should be treated in the Court below) as a neutral factor. The Company has instituted better systems since its failures came to light. That is a mitigating factor, but it is not a factor to which I would attach significant weight. [6] Nor is it relevant (as the learned Magistrate suggested) that the Company is on the prosecutor's watchlist, such that the risk of further reoffending is reduced. The risk of further reoffending is reduced by the implementation of proper systems and training, not by being on the prosecutor's watchlist.
17. In my view, matters of both specific and general deterrence are important. Persons who offend must know that such offending will be treated seriously by the Courts, particularly in respect of Category 1 and Category 2 offending which has, at its heart, the exposure of persons to the risk of serious injury or death caused by the operation of a heavy vehicle. Those in the industry must know that failure to comply with obligations under the HVNL will result in the imposition of sentences reflective of the general danger to the users of roads caused by speed and fatigue-related issues.
18. The Company has been guilty of five prior offences under the Road Transport Act 2013 (NSW), Road Transport (Vehicle and Driver Management) Act 2005 (NSW) and Road Transport (Vehicle Registration) Regulation 2005 (NSW). In respect of the offending under Sch 2, cl 11(3) of the Road Transport Act, the offending related to a failure to pay additional registration fees. The maximum penalty is $11,000. The Company was given the benefit of s 10(1)(a) of the Fines Act 1996 (NSW) and no conviction was recorded.
19. In respect of the offending under s 56(1) of the Road Transport (Vehicle and Driver Management) Act, the offending related to a severe risk breach of dimensions requirements. A fine of $1,500 was imposed. The maximum penalty is $27,500.
20. In respect of the offending under cl 52(2) of the Road Transport (Vehicle Registration) Regulation 2007 (NSW), the Company was fined in respect of failures to comply with applicable vehicle standards in that the vehicle and its parts and equipment were not safe for use and in a serviceable condition. The Company was given two fines of $400 and $750. The maximum penalty is $2,200.
21. It is only necessary to say that the prior offending was limited.
22. The maximum penalty in respect of the Category 2 offending involving a corporation is $1,650,710. The penalty I would have imposed would have been $240,000. Allowing for a 25% discount on account of the plea of guilty, the penalty I impose is $180,000.

George De Paoli and Jonathon De Paoli

1. George De Paoli was a party in the chain of responsibility. Although he was the managing director of the Company, he was only convicted as a scheduler of drivers and heavy vehicles. It is not necessary that I repeat the ways in which he failed to comply with the primary duty, as set out in par [24] of this judgment.
2. Jonathon De Paoli is also a party in the chain of responsibility and was also convicted as a scheduler of drivers and heavy vehicles.
3. It is important that I not sentence George De Paoli on the basis that he was a director of the Company. Whilst he says in his affidavit that he is not trying to excuse his ignorance, he says that he left school at 14 and could not read and write. He tried to educate himself but still has some issues with reading and writing at times. He says he has tried his hardest to keep everyone safe but now recognises that he needs to do more.
4. Jonathon De Paoli appears not to have a formal title but manages the logistics for the Company for runs to Sydney and Melbourne. He recognises that fatigue is probably the biggest risk in the transport industry.
5. Both George De Paoli and Jonathon De Paoli were convicted of Category 3 offences. It is not necessary for the prosecution to establish that by their conduct, they exposed an individual or a class of individuals to a risk of death or serious injury or illness. It is only necessary to establish that they failed to comply with the primary duty under s 26C (which they both accept). The maximum penalty in respect of the Category 3 offending involving the individuals is $55,010.
6. Again, I accept that the offending was below the mid-range. It was not born of deliberate conduct in the sense of the attempts to deliberately circumvent their obligations. However, as schedulers, they were both responsible for sending drivers of heavy vehicles out on the roadway without taking reasonable and practicable steps to ensure that the drivers were not speeding and were complying with proper fatigue management. They failed to safely schedule the drivers and failed to check the drivers' documentation to ensure there was compliance with all necessary requirements. Their role was integral to the safety of the transport operation and integral to the safety of other users of the roadway.
7. I note that both have shown remorse and contrition and have now demonstrated that they are aware of their responsibilities. I note that both entered early pleas of guilty and they are entitled to the discount of 25%. Further, specific and general deterrence is important when sentencing individual defendants. That is because the legislation imposes obligations on all persons in the chain of responsibility. Individuals working for companies may not avoid their responsibilities by relying on the fact that they were employed by a company. It is in their role as schedulers that they had the ability, capacity and power to ensure compliance with the primary duty and take reasonable and practical steps to ensure the safety of their transport activities.
8. The fines I would have imposed on each individual are $20,000. Having regard to the 25% discount, the penalty I impose is $15,000.

Extension of time

1. The appellant seeks an extension of time for the lodging of the appeals in respect of each of the respondents pursuant to Pt 51B of the Supreme Court Rules 1970 (NSW) ("the SCR").
2. In support of the applications for an extension of time, the appellant relies on the affidavit of a solicitor employed by the solicitor for the appellant sworn 19 April 2022. As set out in that affidavit, on 27 December 2021, that is, being within the 28-day time limit prescribed by Pt 51B, r 6(1) of the SCR, the solicitor caused three notices of intention to appeal to be filed in the Registry of the Court of Appeal rather than in the Registry of this Court. An appeal from the Local Court under the Crimes (Appeal and Review) Act lies to this Court rather than the Court of Appeal.
3. Having lodged the notices of intention to appeal in the Court of Appeal, the solicitor provided a copy of each document to the legal representatives who had previously appeared for each of the respondents in the Local Court.
4. In March 2022, the solicitors for the appellant became aware of the error. They filed a summons in respect of each of the three matters in this Court on 22 March 2022 with an accompanying application for an extension of time.
5. As submitted by the appellant, there is no evidence of any prejudice to the respondents.
6. As set out in Pt 51B, r 6(1), an appeal must be instituted within 28 days after the material date. The term "material date" is defined in Pt 51B, r 3 as meaning "where the appeal is given from the decision of a court, the date on which the decision is pronounced or given".
7. Pursuant to Pt 51B, r 6(2), the time fixed for the institution of the appeal may be extended by the Court at any time. The relevant question is whether it is just in all of the circumstances to grant the extension.
8. Whilst each case must be determined on the particular circumstances, relevant factors include whether there was a significant delay in making the application, the explanation for the delay, the merits of the appeal from the decision below and the degree of prejudice to the successful party in the proceeding should the time for appeal be extended. [7]
9. In this case, the failure to file the appeal arose out of an error in the office of the solicitors for the appellant. That error has been explained. The delay in lodging the appeal in this Court was slight. There is no prejudice to the respondents.
10. In the circumstances, I extend the time for the institution of the appeals until the date on which the appeals were filed in this Court, being 22 March 2022.
11. The appellant seeks costs. The respondents filed a submitting appearance. It is not clear why the appellant should be entitled to costs. I'll hear the parties further on costs.

Orders

1. I thus make the following orders: 1. In respect of the respondent (De Paoli Transport Pty Ltd) in proceedings no. 2022/00082036: 1. I extend the time for filing of the summons to 22 March 2022. 2. The appeal is allowed. 3. The monetary penalty imposed by the Local Court is varied. 4. I impose a penalty of $180,000. 5. I make no order as to costs. 1. In respect of the respondent (George De Paoli) in proceedings no. 2022/00082058: 1. I extend the time for filing of the summons to 22 March 2022. 2. The appeal is allowed. 3. The monetary penalty imposed by the Local Court is varied. 4. I impose a penalty of $15,000. 5. I make no order as to costs. 1. In respect of the respondent (Jonathon De Paoli) in proceedings no. 2022/00082090: 1. I extend the time for filing of the summons to 22 March 2022. 2. The appeal is allowed. 3. The monetary penalty imposed by the Local Court is varied. 4. I impose a penalty of $15,000. 5. I make no order as to costs.

Endnotes

1. Attorney-General for NSW v X (2000) 49 NSWLR 653; [2000] NSWCA 199 at [25] (Spigelman CJ); The Roads and Traffic Authority of New South Wales v Fletcher International Exports Pty Limited [2008] NSWSC 936 at [20] (Price J).
2. Nash v Silver City Drilling (NSW) Pty Ltd; Attorney General for New South Wales v Silver City Drilling (NSW) Pty Ltd (2017) 93 NSWLR 338; [2017] NSWCCA 96.
3. R v Irvine; R v Dynamic Industries Pty Ltd; and R v Cini (2009) 25 VR 75; [2009] VSCA 239; Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338; [2016] NSWCCA 37 at [202]; Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at 644; [2000] NSWIRComm 71.
4. House v R (1936) 55 CLR 499; [1936] HCA 40; Attorney General for the State of New South Wales v Ceerose Pty Ltd [2019] NSWCCA 35.
5. See Elias v The Queen (2013) 248 CLR 483; [2013] HCA 31 at [27] (French CJ, Hayne, Kiefel, Bell and Keane JJ); Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25.
6. See Inspector Callaghan v Saunders Constructions Pty Ltd (CT93/1062, 26 November 1993 unrep) at 7 (Maidment J); WorkCover Authority of New South Wales (Insector Petar Ankucic) v McDonald's Australia Limited and Another (2000) 95 IR 383; [2000] NSWIRComm 277 at [5] (Walton J, Vice-President)
7. Pace v Read (2000) 179 ALR 437; [2000] NSWSC 823 at [49] (O'Keefe J); see also Director of Public Prosecutions NSW v Hughes [2017] NSWSC 492.

Amendments 09 December 2022 - Amendment to Orders at par [115], sub pars (1)(e), (2)(e) and (3)(e): "I make no order as to costs." DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 December 2022