Local Court New South Wales Medium Neutral Citation: Roads & Maritime Services v Remondis Australia Pty Ltd [2017] NSWLC 15 Hearing dates: 8-9 May 2017 Decision date: 12 July 2017 Jurisdiction: Criminal Before: McIntyre LCM Decision: See Table of Penalties Catchwords: SENTENCE – mass overload breaches – multiple breaches – consignor – chain of responsibility Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Heavy Vehicle National Law no. 42a Local Court Act 2007 Road Transport (Vehicle and Driver Management) Act 2005 Cases Cited: Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Council of the City of Sydney v Trico Constructions Pty Ltd [2015] NSWLEC 56 EPA v Barnes [2006] NSWCCA 246 He Kaw Teh v The Queen (1985) 157 CLR 523 Kemp v Air Liquide Australia Ltd [2014] NSWSC 1200 Kemp v Doble Express Transport Pty Ltd [2014] NSWSC 785 Kemp v KGB Protective Coating Pty Ltd [2014] NSWSC 586 Lowe v The Queen (1984) 154 CLR 606 Muldrock v The Queen [2011] HCA 39 O'Hara v Harrington [1962] Tas SR 165 R v Sutton [2004] NSWCCA 225 R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 R v Brown (1982) 5 A Crim R 404 Roads and Traffic Authority of New South Wales v Fletcher International Exports Pty Limited [2008] NSWSC 936 The Queen v De Simoni (1981) 147 CLR 383 Winchester v R (1992) 58 A Crim R 345 Category: Sentence Parties: Roads & Maritime Services (prosecution) Remondis Australia Pty Ltd (defendant) Representation: Counsel: M Cahill (for the prosecution) W Muddle SC with C Ireland (for the defendant) Solicitors: Sparke Helmore (for the prosecution) Clyde and Co (for the defendant) File Number(s): 2015/278561; 2015/284401 Judgment The charges 1. On 6 March 2017 Remondis Australia Pty Ltd ("Remondis") pleaded guilty to 12 contraventions of the Road Transport (Vehicle and Driver Management) Act 2005 ("RTVDM Act"). Those 12 charges alleged contravention, as consignor of loads of mulch, of section 53(1) of the RTVDM Act, and consist of 9 substantial breaches of the applicable mass limit and 3 severe breaches of the applicable mass limit. These offences occurred between 5 September 2013 and 9 February 2014. 2. On 6 March 2017 Remondis pleaded guilty to 38 contraventions of the Heavy Vehicle National Law no. 42a. ("HVNL"). Those 38 charges alleged contravention, as consignor of loads of mulch, of section 594 of the HVNL and consisted of 19 substantial breaches of the applicable mass limit and 19 severe breaches of the applicable mass limit. These offences occurred between 10 February 2014 and 1 October 2014. 3. A sentencing hearing was held over two days on 8 and 9 May 2017. The Court's task is to determine and impose appropriate penalties for the offences. Remondis has agreed to pay the prosecutor's professional costs in the amount of $250,000. The facts of the offence 1. The parties have agreed on a set of facts (at Exhibit One) which describe every aspect of the conduct of the defendant, including the initial contract of agreement with the Lake Macquarie Council in relation to the processing, composting and removal of "green bin" household garden waste at the Awaba Waste Management facility, located on the central coast of NSW. Remondis processed and composted the material made from garden clippings, branches, tree parts and miscellaneous green waste and then contracted to have the mulch removed from the site (per affidavit of Mr Luke Agati, Exhibit 3). 2. The agreed facts include steps taken by Remondis during the charge period in respect of the further training and education of their employees at the Awaba site, and then those steps taken to rectify the weight breaches once the investigation by the RMS had commenced. A history of the Court proceedings is also included in the exhibited agreed facts. 3. In summary, between September 2013 and October 2014 Remondis was both the consignor and loader of various loads of much transported by road. Each load of mulch was transported on a heavy combination vehicle, consisting of a prime mover and a walking trailer. This vehicle was operated by Jet Group Australia Pty Ltd ("Jet"). Each load was transported from the Awaba Waste Management Facility at Awaba in NSW, to Jet's premises at 76 Nomad Road Toronto. The distance by road was 3.8 kilometres. At all material times the mass limit applicable to the vehicle was 42.5 tonnes. 4. Jet Group Australia was charged in basically identical terms under the same legislative regime, as operator of the said heavy vehicle. It pleaded guilty in October 2016 to 10 contraventions of the RTVDM Act (7 substantial and 3 severe risk breaches) and 40 contraventions of the HVNL (21 substantial and 19 severe risk breaches). Jet has already been sentenced by Magistrate Milledge on 15 February 2017. To assist the Court with the obvious parity issues, a table of the penalties imposed in that case have been provided to this Court. The parties have informed this Court that the decision is subject of appeal to a superior court, and at the time of writing, is yet to be determined. Purposes of sentencing 1. Section 3A of the Crimes (Sentencing Procedure) Act 1999 ("CSP Act") provides that the purposes of imposing a sentence on an offender, including a company, are: (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community. It is self-evident that these purposes overlap, may be in conflict and cannot be considered in isolation, one from the other, in their application to a particular case: Kemp v KGB Protective Coating Pty Ltd [2014] NSWSC 586 (per Garling J at [11]). 1. The sentence of the court is a public denunciation of the conduct of the offender. The sentence must ensure that the offender is held accountable for its actions and is adequately punished. It needs to deter the offender from committing similar breaches in the future - which is particularly important here, since Remondis is a large international company in the business of transporting heavy goods. Although I have found herein that Remondis is unlikely to reoffend, because of its genuine remorse and the remedial actions it has taken, this does not mean that there is no need for the sentence to include any component of specific deterrence: Council of the City of Sydney v Trico Constructions Pty Ltd [2015] NSWLEC 56 (per Preston CJ at [43]). 2. These are "chain of responsibility" offences – a term used to coin a legislative regime introduced in 2005 to ensure that each player in the transport process was liable for breaches of heavy vehicle transport laws. It is conveniently described by the National Heavy Vehicle Regulator (www.nhvr.gov.au) in these terms: The aim of the COR is to make sure everyone in the supply chain shares equal responsibility for ensuring breaches do not occur. Under COR if you exercise or have the capability of exercising control or influence over any transport task, you are part of the supply chain and therefore have a responsibility…..If you consign, pack, load or receive goods as part of your business you could be held legally liable for breaches, even though you have no direct role in driving or operating a heavy vehicle. In addition, corporate entities, directors, partners, and managers are accountable for the actions of people under their control. 1. Clearly therefore the prospect of general deterrence looms large - the sentence of the Court needs to operate as a powerful factor in preventing the commission of similar offences, on public roads and highways, by persons or corporations within the chain of responsibility, who might be tempted to do so by the prospect that, if they are caught, only light punishment will be imposed: Trico Constructions at [44]. Objective seriousness of the offence- qualitative and quantitative features 1. The Court must consider the objective and subjective circumstances of the offence and the offender and the aggravating, mitigating and other factors set out, as relevant, under section 21A of the CSP Act. The terms of s 21A(1) mandate that in determining the appropriate sentence for an offence the court must take into account: (a) the aggravating factors referred to in subsection (2) that are relevant and known to the court, (b) the mitigating factors referred to in subsection (3) that are relevant and known to the court, (c) any other objective or subjective factor that affects the relative seriousness of the offence. The matters referred to in this subsection are in addition to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law. 1. It is noteworthy that the Court must also have regard to codified risks under both the RTVDM Act and the HVNL that are deemed to arise in matters of substantial and severe mass overload offences. 2. The objective circumstances of relevance to this case must begin with the maximum penalty provided for under the legislation, to which I now turn. Maximum penalty 1. The dates, times, and breach classifications appear in the tables conveniently provided by the RMS and attached to their written submissions. The tables encompass the relevant legislation and reflects that the type of breach is determined by the amount or percentage that the load is over the specified weight allowed for the particular vehicle, which in turn determines the maximum penalty available. The maximum allowable weight for every offence charged was 42.5 tonnes. 2. The penalty regime for a corporation may be summarised as follows: Under the RTVDM Act (Schedule 4): * Substantial breach – first offence maximum penalty is 110 penalty units / $11,000 * Substantial breach – second offence maximum penalty is 200 penalty units /$22,000 * Severe breach – first offence maximum penalty is 250 penalty units/ $27,500, plus 25 penalty units/ $2,750 for every additional 1% over 120% overload * Severe breach- second offence maximum penalty is 500 penalty units/ $55,000, plus 50 penalty units/ $5,500 for every additional 1% over 120% overload. Under the HVNL (ss 96(1)(b) and (c); s 594(2)(b) and (c); s 596): * Substantial breach – maximum penalty is $6,000 (x5 for a corporation) = $300,000 * Severe breach – maximum penalty is $10,000 plus an additional $500 for every additional 1% over 120% overload (x5 for a corporation) = $50,000, plus $2,500 for every 1% over 120% overload. * There is a jurisdictional maximum applicable to the latter percentage - over calculations of $20,000. 1. The Court took issue with the RMS's apparent concession or agreement that all the offences before the Court were appropriately viewed as first offences. It has been established subsequently that the offences charged under the RTVDM Act cannot be classified in this way – all but the first in time (11 of the 12 charges) is a second or subsequent offence according to section 96 of the Act. As Price J found in Roads and Traffic Authority of New South Wales v Fletcher International Exports Pty Limited [2008] NSWSC 936, section 96 specifically discriminated between previous occasions of offending, as opposed to previous convictions for offending. The maximum penalties were thereby amended and increased for the purposes of the tables provided. 2. On the other hand, however, the Heavy Vehicle National Law makes no such distinction, and the Court (with some reluctance, given that the HVNL offences occurred later in time to the RTVDM offences) must deal with each of those offences as first offences. This on the basis that there is nothing to abrogate Lord Coke's age-old principle 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.": O'Hara v Harrington [1962] Tas SR 165 (per Burbury CJ). 3. Whilst the penalty regimes may not fit comfortably together, there is ultimately no adjustment to the maximum penalties as tabled under the HVNL – they are all to be dealt with as first offences. I decline Mr Muddle SC's invitation however to allow each "first" HVNL offence an immediate 15% discount in proposed penalty – that does not ring true in the circumstances here, with 50 offences committed, sometimes twice per day, over the course of more than a year. 4. Mr Muddle SC further contends that so far as the RTVDM Act offending is concerned, the subsequent matters should not automatically incur a higher penalty on the basis that the offender has "neither the formal sanction of prior conviction nor even (in this strict liability offence) the consciousness of breach". He contends that all of the offences really reflect "a single systems failure" in any event. Whilst that may be so, it is apposite to note that the Court must strongly consider the maximum penalties available - reflecting as they do the public expression by the Parliament of the seriousness of the offences, and the fact that second offences expressly carry higher penalties. The maximum penalties must always be viewed as a yardstick used to measure the relevant features of the particular instance of an offence against a worst case: Trico Constructions at [50]. 5. The Court is aware of 154 additional instances of overloading initially pursed under both the RTVDM Act and the HVNL. Clearly I am dealing only with the 50 overload matters which are pleas of guilty before me, and the defendant will not, in accordance with the principles enunciated in The Queen v De Simoni (1981) 147 CLR 383 at 395, be punished for an offence of which it has not been convicted. 6. That being said, I accept the prosecutor's contention that the additional instances of overload as described in the agreed facts negative any suggestion that the offences before the Court in relation to which Remondis is to be sentenced can be characterised as isolated departures by the defendant in an otherwise compliant system relating to the management of the mass of the defendant's vehicle. The criminality of the offender in relation to the overload/risk categorisation 1. The defendant is to be sentenced as the consignor of loads being transported by road on a heavy combination vehicle which on each occasion charged, exceeded the applicable mass requirement – it is not to be sentenced because its conduct constituted the breaches in and of themselves: Kemp v Air Liquide Australia Ltd [2014] NSWSC 1200. Specific statutory considerations 1. According to section 594 (2) of the HVNL, and its predecessor section 60 of the RTVDM Act, in determining the sanction to be imposed in relation to each breach, including the level of the fine, the court is required to have regard to the classification of the breach, and having regard to that classification have regard to the listed matters following. 2. In relation to each of the substantial risk breaches these are : (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. 1. In relation to each of the severe risk breaches these are: (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 damage 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. 1. It is trite to observe that evidence of such matters is not required, and is thus deemed to exist due to the very fact of the mass overload. That being said, it is permissible to distinguish the relevant features of our particular matter: Kemp v Air Liquide. In my view these are readily identifiable as both substantial and severe risks of: * Accelerated road wear – obviously large and overweighted vehicles effect longevity of the road surface. * Damage to road infrastructure - a large and overweighted truck on Awaba Road speaks to such damage. It is uncontested however that the stretch of road in question is fairly isolated, described as a back-road, and the infrastructure issue would not be as pressing if for example we were dealing with a large and often used public road or freeway. Neither is there any evidence that the trucks were ever speeding for example, which would potentially damage infrastructure further. * Diminished public amenity – the noise and/or pollution of overloaded trucks speaks for itself, as does the impact on surrounding bush environment and public enjoyment of the bush environment. * Unfair commercial advantage - whilst there is no evidence that Remondis actually benefited financially or saved costs through overloading the trucks, since it paid Jet per tonne, ultimately it was their contractual arrangement, together with Remondis' lack of scrutiny of the invoices, which specified the weights carried on every occasion, that allowed Jet to benefit from being paid for weight that was unlawfully carried. 1. The most telling feature of the substantial/severe risk categorisations is that an appreciable risk of public harm is exclusive to the severe risk category: RMS v Fletcher. Cleary in this case, although such public harm was never realised, should an overloaded truck have been involved in a driver/pedestrian collision, or a failure to break, or turn, there could have been catastrophic consequences, as was the case in Kemp v Doble Express Transport Pty Ltd [2014] NSWSC 785, when a driver was killed as a result of a collision with a truck with an unsecured load on a public highway. 2. The Jet truck was constructed to safely carry a maximum of 42.5 tonnes. The fifty offences before me (22 of which are severe breaches) range from between 3 and 16 tonnes overweight. The majority of them are at least 10 tonnes overweight. Given that severe risk breaches occurred on a total number of 22 occasions over the time period charged, the existence of "appreciable public harm" is significant and most certainly in the mid-range when assessing the imposition of penalty for the consignor of those goods. It is also the case that the level of offending so far as the substantial breaches are concerned fall within the same mid-range category – given that the majority of mandated considerations exist on every occasion of substantial breach also. 3. That being said, I accept the proposition that the subject of the overload, mulch, wet or dry, was not as potentially hazardous as gas, oil, or chemicals. Then again, overweight is overweight, the legislation does not discriminate between types of goods carried, and it is the fact that the truck is not constructed to safely convey those weights that is at the heart of the breaches and at the heart of the considerations of risks mandated under section 60 and section 594. 4. It is now appropriate, quite apart from the legislative regime, to undertake further objective assessment of the seriousness of the offence, and of Remondis' conduct. This assessment arises from the nature and circumstances of the offence: Muldrock v The Queen [2011] HCA 39. 5. Mr Muddle SC for the defendant submits that ultimately the Court is dealing with a single systems failure in relation to each and every offence, and that culpability should be reduced in that regard. It is contended that Remondis, as consignor of the loads, relied on Jet as operators to ensure that the trucks were not overloaded at the time they left the site. It was unfortunately the case that the weighbridge itself was remote from the Remondis site supervisor, and in fact was operated by the Council itself. Jet drivers were provided with a weighbridge docket in real time, but did not pass the overload information on to Remondis at the time it was provided, nor act upon it. Jet simply presented the invoices for the transport of the goods to Remondis, and Remondis paid them, despite the fact that every invoice referenced the weighbridge docket, and recorded the mass overloads on every occasion. 6. Simply put, it is suggested that Remondis mistakenly relied on the other parties to ensure that the loads were within lawful limits. It falsely assumed that the Council and Jet would fulfil their chain of responsibility requirements. 7. This submission falls somewhat flat however when viewed, as it must be, through the prism of chain of responsibility legislation, and the substantial, if not premiere, role that Remondis played within the transport chain. 8. It is inescapable that Remondis had control over the primary step in the process – the consignment of the loads of mulch. It has possession of or control over the goods before they are loaded (by its machinery) and before the goods are transported by road. The whole process of mass overload began with Remondis, and ultimately, it was Remondis' legislative responsibility to ensure that the mulch that was consigned to Jet was within lawful bounds. 9. Clearly, it is not a mitigating factor that the mulch was transported or delivered by Jet: RMS v Fletcher. Since 2005, the chain of responsibility legislation has meant that all parties in the transport chain of responsibility - consignors, packers, loaders, operators, drivers and some cases consignees, need to be aware of the requirements of road transport law particularly in relation to mass dimension and load restraint. It was critical therefore that Remondis had an active system in place to manage the risk and to minimise the chances of road transport law being breached: Kemp v Air Liquide. 10. The Court is concerned that there was nothing done by Remondis at the consignment (or loading) stage to ensure such compliance. It could not appropriately be described as some sort of "hapless victim" of either Jet or the Council's inaction: He Kaw Teh v The Queen (1985) 157 CLR 523. Further, there is little or no weight to be placed on the contention that there was another contracted operator (Port Stephens Gardenland) that never breached its limits in relation to the mulch, and that therefore Jet should bear the bulk of the responsibility. It seems more likely that the absence of overloaded mulch transported by Gardenland was sheer good luck, given the lack of any weighing or measuring devices on the part of Remondis. 11. Remondis is a large company that should have been well versed in its responsibilities in this regard – as Price J found in RMS v Fletcher - "the defendant as consignor was obliged to ensure that the overloads did not occur and could not turn a blind eye" to whether the trucks transporting the mulch were over loaded or not. 12. That the weighbridge was remote from their site supervisor meant that from the outset Remondis should have addressed that and had immediate, real time access to the data. It should have ensured from the outset that its equipment could measure the consignments being loaded. Moreover, Jet's invoices were repeatedly paid without any regard by Remondis as to the tonnage specified therein. It is only when the RMS brought the breaches to the attention of Remondis that they addressed the shortfalls in their system. 13. It is contended by the Mr Muddle SC that Remondis was indeed aware of its obligations and had "a system in place" relating to road transport and chain of responsibility legislation – in that vein the court was referred to a 2008 and 2014 Driver and Operator Manual, which described the legislation and informed readers as to who was covered by it. According to the CEO and director Mr Agati, Remondis had implemented and trained its workers in accordance with those policy manuals: at Exhibit 3, [24]. 14. However, and as submitted by the prosecution, neither of those manuals makes any reference to the applicable vehicle mass requirements and/or overloading. It does not go beyond what Remondis' own drivers should do, and obviously does not cover loading and consignment weight compliance. Thus, whilst Remondis may have been aware of its obligations, I am not able to place a great deal of weight on the contention that that awareness was ever properly translated into practice. 15. Clearly a number of steps have since been taken, and indeed were taken immediately upon the RMS initiating investigations. Those steps included the implementation of a loading protocol, so that applicable mass limits are identified and can be verified at the point of loading, the installation of load cells at the loader bucket to ensure that the legal load limits are not exceeded, the implementation of communication protocols between the defendant and the weighbridge or driver of the heavy vehicle so as to ensure that no truck is allowed to exit the site overweight, and the provision of supervision to ensure compliance or corrective action when non-compliance occurs. Whilst these steps were timely and appropriate, I accept the contention of the prosecution that such controls were simple, straight forward and well-known, and their somewhat glaring absence at the outset of the contractual arrangement should weigh heavily on the mind of the Court. 16. Taking all of these things into account, and weighing the often competing factors, I conclude that placement at a mid-range of offending in both the substantial and severe categories is appropriate. 17. I now turn to other issues in aggravation or mitigation that may allow for adjustment to that initial placement – given of course that the Court must arrive at a monetary figure in relation to each offence. Section 21A(2)(i), Crimes (Sentencing Procedure) Act 1. The RMS contends that all of these offences were committed without regard for public safety. So far as the severe breaches are concerned, I am satisfied that this aspect of sentencing is provided for within the RTVDM Act and HVNL itself, as a deemed element of the offending. The substantial breaches do not contain such an element however, and it is open to the court to find that there was a disregard (probably again, around mid-level) for public safety so far as Remondis' inaction in checking the legality of the weights of the consigned material as it was legally obliged to do. 2. There are no other aggravating factors to be assessed. The plea in mitigation Subjective circumstances of the offender 1. Within the limits set by the objective seriousness of the offence, the Court may take into account factors pertinent to Remondis itself: Trico Constructions at [79]. These are found as follows: i. The pleas of guilty/utilitarian value of pleas 1. Remondis entered pleas of guilty on 6 March 2017. The Court accounts for this fact under s 21A(3)(k) and s 22 of the CSP Act. A plea of guilty has utilitarian value for the criminal justice system, and a lesser penalty will be imposed than otherwise may have been the case. However, it cannot be unreasonably disproportionate to the nature and circumstances of the offence: s 22(1A), CSP Act. 2. In determining the extent of the discount, the Court is required to consider when the offender pleaded guilty or indicated an intention to do so. As a general rule, the earlier the plea, the greater the discount, whilst the later the plea, the lesser the discount: R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383; Trico Constructions. 3. This matter took a number of turns prior to that date, having first come before the Court in November 2015. They began as separate charges against Remondis and Mr Agati as director of Remondis. They were laid in terms of loader and consignor of the mulch on each occasion. There were initially 68 CANS laid under the RTVDM Act, covering time period from September 2013 to October 2014. Their first return date was 9 November 2015 and pleas of not guilty were entered and maintained until March of 2017. The second tranche of 244 court attendance notices laid under the HVNL, against both Remondis and Mr Agati as director, spanned a time period of February to October 2014. They came before the court on 5 April 2016. Pleas of not guilty were formally entered to those matters on 7 June 2016. On 19 July 2016, all of the matters were set down for a 15 day contested hearing, to commence on 11 November 2016. In October 2016 the prosecution elected to proceed with only one charge per CAN. There was in the meantime an application on the 11 October 2016 to set aside subpoenas by the defendants Remondis and Agati, combined with what was effectively an application for the court to prevent the RMS from serving any other material or relying upon any other brief material. This Court made an interlocutory decision which overruled those objections. An application to appeal that decision to the Supreme Court was made, and the 15 days of hearing were vacated by order of the Supreme Court as a result of a stay being granted in the Supreme Court on 10 November 2016, pending the outcome of the appeal. 4. The appeal was withdrawn and ultimately the pleas were entered by Remondis only, as consignor only, to fifty court attendance notices, on 6 March 2017. All the CANS against Luke Agati as director were withdrawn and all charges vis-a-vis both defendants as loader were withdrawn. 5. As the history outlined herein strongly suggests, it could not be said that the plea was entered at the first available opportunity. Much has been made by the defendant that the multiple CANS were always "bad for duplicity" and could never have been maintained as they were. Frankly, if this was the only impediment to guilty pleas being entered it should have (and in this Court's experience of plea negotiations, would have) been raised and corrected and amended in a timely manner. 6. I reject the submission by the defendant that the prosecution had difficulty compiling and serving its brief - this Court was effectively asked in the interlocutory proceedings to prevent them from doing so. In any event, this Court has maintained that a brief of evidence was never necessary, given the fact that these are fine only offences: Local Court Act 2007; cl 21, Criminal Procedure Regulation. 7. I am not convinced that the complex history as outlined herein reflected the nature of the charges – the prosecution needed only to rely on the instances of overweight as documented in the weighbridge dockets to make out their case. 8. Whilst the Court's resources have been saved so far as the vacation of a fifteen day defended hearing, that is, simply put, the extent of the utilitarian benefit to be quantified, and it falls, for the reasons given herein, to the lower end of the range- given the number of court days that have been devoted to the various applications of the defendant as the matters proceeded. 9. I reject the defendant's submission that the plea should be characterised as early and deserving of as much as a 25% reduction as per R v Thompson; R v Houlton discounts, and in terms of utilitarian value I quantify that at 15%. ii. Remorse and contrition 1. Remorse may be taken into account as a mitigating factor under section 21A(3)(i) CSP Act, but only if: (i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both) Mr Luke Agati of Remondis provided a sworn affidavit (Exhibit 3) for the Court and gave evidence in the sentence proceedings. Clearly he has expressed regret that the breaches occurred, and he states that "these incidents do not reflect the way Remondis likes to conduct itself or its business". Within the affidavit however there is a hint that he distances Remondis from the weighbridge process: Lake Macquarie Council owned and operated the weighbridge Remondis had no role in the operation of the weighbridge and did not have access to the weighbridge. (at 15) He states that: Remondis was never contacted by any representative of the Jet Group about the Jet combination being in excess of the applicable mass limits when leaving the facility…., and that Jet's drivers were not trained as Remondis drivers were… Whilst the Court accepts that the remorse is genuine, the chain of responsibility legislation under which Remondis has been prosecuted compels that active and preventative measures be taken in relation to the whole process. 1. It was never open to Remondis to rely on Jet to be properly trained and informed as to the overweight vehicles, especially when it was Remondis itself that loaded the mulch, using their machinery, without any provision for each load to be measured or weighed as it was going into the Jet truck. Consideration must therefore be given to the strength of the prosecution case in this regard – this Court was always somewhat perplexed as to Remondis being able to invoke the "reasonable steps" defence provided for in the legislation, given what was apparently a lack of any measures on the part of Remondis to ensure that they were loading or consigning mulch that met the trucks load limits. 2. The weighbridge dockets were readily available to Remondis, and indeed were consistently provided to them in writing, in the form of Jet's invoices. It is open to the Court therefore to temper or qualify the extent of genuine contrition expressed by Mr Agati, given the strength of the prosecution case, and what may aptly be described as the pleas of guilty ultimately reflecting a "recognition of the inevitable": Winchester v R (1992) 58 A Crim R 345. The strength of the Crown case is relevant to the question of remorse: R v Sutton [2004] NSWCCA 225 at [12]. 3. That being said, Remondis has both active and preventative measures to ensure no such breaches occur again. According to the agreed facts, Remondis has taken steps since the charges to ensure that it can prevent any breach of the load limits itself at the point of loading, notwithstanding any non-involvement by the Council or Council's weighbridge, and independently of any action by drivers. In this sense, Remondis has fully taken charge of its responsibilities and has introduced a weighing mechanism at the point of loading, entirely removing the previous reliance that Remondis had placed on the drivers and on the Council weighbridge (which Remondis concedes was, as demonstrated by the charges in question, not a fool-proof mechanism). iii. Likelihood of reoffending 1. Given the steps that have been taken to correct the flaws in the consignment and loading regime, I am convinced that, insofar as the loading of mulch from Awaba facility is concerned, there is little or no likelihood of reoffending. iv. Assistance to authorities 1. It is certainly the case that once the RMS alerted Remondis to the allegations of overload, they took steps to provide the RMS with relevant information as to their part in the process. A letter addressing the investigation was sent on 22 April 2015, and appeared to suggest that Remondis was labouring under a "misunderstanding" about which player in the process was responsible for the weighbridge data and documentation. At the same time, it expressed a commitment to the chain of responsibility legislation. Remondis went on to strictly reserve its position in relation to any proposed court proceedings, which of course was their right, and as we are well aware, the court proceedings did not reflect any further cooperation or assistance to the RMS until very late in the piece. v. No prior convictions – s 21A(3)(e), CSP Act 1. It is uncontested that Remondis has no prior convictions – this is a powerful factor in mitigation, given the size of the company and the vast number of goods and services it provides nationally. It is a well-respected member of the business community, and could only be described as a generous and committed corporate citizen. 2. Whilst it is not normally preferable to give numerical or percentage discounts in relation to factors in mitigation, for ease of reference as to the fines to be imposed, I will do so. I have determined that I will allow a combined 25% reduction for plea of guilty (at 15%) plus first offending, remorse, contrition, unlikelihood of reoffending and assistance to authorities (at 10%). 3. That leaves the issues of parity and totality for resolution – should any further reduction be allowed in respect of the penalties imposed on Jet, or on the basis of the totality principle? Parity 1. The Court has borne in mind the penalty regime applied to Jet Pty Ltd as operators of the overloaded vehicle, and had regard to the formula applied by Magistrate Milledge in relation to reductions. Her Honour had been provided with different (and incorrect) maximum penalties in relation to the RTVDM Act offences however, so parity measurements were difficult there. I am of the firm view that even taking those differences into account, the penalties this court has imposed upon Remondis are very similar, and consistent. They do not place an undue burden on Remondis as the larger corporation, and neither party should feel a sense of grievance vis-a-vis the penalties imposed on the other: Lowe v the Queen (1984) 154 CLR 606, Mason J at 610. The court therefore makes no percentage reduction or amendment in relation to parity with the Jet penalties. Totality 1. Although the Court must sentence Remondis for each of the 50 offences to which it has pleaded guilty, the determination of what is the appropriate penalty in each case must be arrived at by considering the principle of totality. Totality issues are relevant despite these being fine-only offences: Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683. It may be however that the principle may not have the same force in the case of the imposition of fines as opposed to the imposition of imprisonment where it has a special operation: R v Brown (1982) 5 A Crim R 404 at 407. On the other hand, the HVNL specifically requires the Court to consider the combined effect of the penalties imposed (s 593(2)). 2. Does the aggregate penalty exceed what is called for in the whole of the circumstances? Taking a broad view, the Court must assess the overall criminality involved in all of the offences, and then determine what, if any, downward adjustment is necessary, through telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences: EPA v Barnes [2006] NSWCCA 246. In this regard, it is contended that despite the large number of offences, all stemmed from a single act of criminality – whereby Remondis as consignor had a flawed compliance system in place. The Court has found that although that may be so, there were many ramifications because of that flaw, all the way down the transport chain. I am also of the view that to describe the compliance system as "flawed" is somewhat generous – until the RMS intervened, Remondis had no mass compliance system in place at all, and entrusted that to others. Still, the total aggregate penalties available (combining both pieces of legislation) amount to over $2.1 million. The Court is certainly not dealing with mass overloads that constitute a worst case scenario, despite the number of offences involved. It has placed the offences - qualitatively speaking - at a mid-range of offending, and of course there are 38 severe breaches and 12 substantial breaches, with different maximums available. The overloads were by the same truck and carried relatively innocuous product. I have determined therefore that a totality reduction will be applied in the amount of a further 10% reduction of each penalty. 3. This results in an accumulated total penalty for each breach, under both Acts, of $732,206.25 – a figure which sits at approximately 34% of the totals available to the Court. Formula i. Due to what might be best termed the "qualitative" or objective features of the breaches (as described above), all are placed within the mid-range of offending. That results in a blanket reduction of 50% of the maximum penalty on each occasion. 1. It is of note that so far as maximum penalties for offences within the severe category are concerned, both the RTVDM and HVNL legislation adjust those penalties to reflect the "quantitative" extent of the relevant breach, or the amount/ percentage overweight. As a matter of principle, I find that there should be an adjustment to the penalty imposed in certain circumstances to reflect the quantitative extent of the breach within the substantial category also. For example, absent exceptional circumstances, the penalty for a "substantial breach" involving an overload of 119% should surely be greater than the penalty for a "substantial breach" involving an overload of 106%. ii. Reflecting this principle, the Court has allocated the substantial breaches a quantitative adjustment - either low (105% to 109.9% overload), medium (110% to 114.9% overload) or high (115% to 119.9% overload). A 25% discount (taken from figure 1 above) has been applied to low substantial breaches. A 25% loading has been applied to high substantial breaches. No adjustment is made to medium substantial breaches. iii. Then, that figure is reduced by a further 25%, to embrace the mitigating features - plea of guilty (15%) plus assistance remorse/contrition, first offender (10%). iv. Finally, a further 10% reduction is applied to each amount based on totality. 1. The Table of Penalties as determined by the Court is attached to this judgement and should be read in conjunction with the "formula" herein. 2. I order Remondis to pay the professional costs of the Prosecutor in the amount, as agreed, of $250,000. Magistrate S McIntyre Downing Centre Local Court 12 July 2017 ********** Table of Penalties Road Transport (Vehicle and Driver Management) Act Permitted Weight: 42.5 tonnes Weight % overload adjustment Mitigating factors Totality CAN Date/Time Breach type Maximum penalty Qualitative placement/ reduction (- 50%) -25%,nil, +25% (-25%) (-10%) Total % overload 16.9.2013 47.22t Mid range 1 First offence Substantial $11,000.00 $5,500.00 No adjustment $4,125.00 $3,712.00 $3,712.50 15:57 111% 17.9.2013 52.98 2 Subsequent Severe $77,000.00 $38,500.00 Not applicable $28,875.00 $25,987.50 $25,987.50 15:23 124% 18.9.2013 50.64 High range,+25% 3 8:25 Substantial $22,000.00 $11,000.00 $13,750.00 $10,312.50 $9,281.25 $9,281.25 119% 18.9.2013 51.08t 4 14:02 Severe $55,000.00 $27,500.00 Not applicable $20,625.00 $18,562.50 $18,562.50 120% 18.9.2013 50.48t High range,+25% 5 15:38 Substantial $22,000.00 $11,000.00 $13,750.00 $10,312.50 $9,281.25 $9,281.25 118% 20.9.2013 52.2t 6 10:16 Severe $66,000.00 $33,000.00 Not applicable $24,750.00 $22,275.00 $22,275.00 122% 8.10.2013 49.56t High range,+25% 7 13:00 Substantial $22,000.00 $11,000.00 $13,750.00 $10,312.50 $9,281.25 $9,281.25 116% 11.10.13 47.06t Mid range 9 14:02 Substantial $22,000.00 $11,000.00 No adjustment $8,250.00 $7,425.00 $7,425.00 113% 16.10.2013 48.14t Mid range 11 10:15 Substantial $22,000.00 $11,000.00 No adjustment $8,250.00 $7,425.00 $7,425.00 113% 17.10.2013 48.76t Mid range 13 9:00 Substantial $22,000.00 $11,000.00 No adjustment $8,250.00 $7,425.00 $7,425.00 114% 23.10.2013 46.9t Mid range 15 10:08 Substantial $22,000.00 $11,000.00 No adjustment $8,250.00 $7,425.00 $7,425.00 110% 3.2.2014 49.12t High range,+25% 17 10:44 Substantial $22,000.00 $11,000.00 $13,750.00 $10,312.50 $9,281.25 $9,281.25 115% GRAND TOTAL $137,362.50 Heavy Vehicle National Law Permitted Weight: 42.5 tonnes Weight % overload adjustment Mitigating factors Totality CAN Date/Time Breach type Maximum penalty Qualitative placement/ reduction (- 50%) -25%,nil, +25% (-25%) (-10%) Total % overload 10.02.2014 47.00t Mid range 1 First offence Substantial $30,000.00 $15,000.00 No adjustment $11,250.00 $10,125.00 $10,125.00 12:24 110% 11.2.2014 47.62t Mid range 2 12:09 Substantial $30,000.00 $15,000.00 No adjustment $11,250.00 $10,125.00 $10,125.00 112% 13.2.2014 46.96t Mid range 3 11:40 Substantial $30,000.00 $15,000.00 No adjustment $11,250.00 $10,125.00 $10,125.00 110% 14.2.2014 46.06 Low range 4 11:00 Substantial $30,000.00 $15,000.00 -25% $8,437.50 $7,593.75 $7,593.75 108% $11,250.00 17.2.2014 48.08t Mid range 5 13:15 Substantial $30,000.00 $15,000.00 No adjustment $11,250.00 $10,125.00 $10,125.00 113% 17.2.2014 53.88t 6 15:16 Severe $65,000.00 $32,500.00 Not applicable $24,375.00 $21,937.50 $21,937.50 126% 18.2.2014 52.16t 7 8:42 Severe $55,000.00 $27,500.00 Not applicable $20,625.00 $18,562.50 $18562.50 122% 18.2.2014 50.02t High range+25% 8 14:48 Substantial $30,000.00 $15,000.00 $18750.00 $14,062.50 $12,656.25 $12,656.25 117% 21.2.14 48.36 Mid range 9 15:06 Substantial $30,000.00 $15,000.00 No adjustment $11,250.00 $10,125.00 $10,125.00 113% 24.2.14 48.52t Mid range 10 14:16 Substantial $30,000.00 $15,000.00 No adjustment $11,250.00 $10,125.00 $10,125.00 114% 25.2.14 50.16t High range+25% 11 10:46 Substantial $30,000.00 $15,000.00 $18750.00 $14,062.50 $12,656.25 $12,656.25 118% 25.2.2104 51.14t 12 12:17 Severe $50,000.00 $25,000.00 Not applicable $18,750.00 $16,875.00 $16,875.00 120% 26.2.2014 49.72t High range+25% 13 14:34 Substantial $30,000.00 $15,000.00 $18750.00 $14,062.50 $12,656.25 $12,656.25 116% 27.2.2014 51.9t 14 8:37 Severe $55,000.00 $27,500.00 Not applicable $20,625.00 $18,562.50 $18,562.50 122% 27.2.2014 50.62t High range+25% 15 11:59 Substantial $30,000.00 $15,000.00 $18750.00 $14,062.50 $12,656.25 $12,656.25 119% 28.2.2014 45.58t Low range 16 8:44 Substantial $30,000.00 $15,000.00 -25% $8,437.50 $7,593.75 $7,593.75 107% $11,250.00 3.3.2014 53.72t 17 15:19 Severe $65,000.00 $32,500.00 Not applicable $24,375.00 $21,937.50 $21,937.50 126% 4.3.2014 55.98t 18 8:38 Severe $77,500.00 $38,750.00 Not applicable $29,062.50 $26,156.25 $26,156.25 131% 4.3.2014 46.14t Low range 19 15:35pm Substantial $30,000.00 $15,000.00 -25% $8,437.50 $7,593.75 $7,593.75 108% $11,250.00 5.3.2014 50.46t High range+25% 20 11:45 Substantial $30,000.00 $15,000.00 $18750.00 $14,062.50 $12,656.25 $12,656.25 118% 5.3.2014 52.10t 21 13:53 Severe $55,000.00 $27,500.00 Not applicable $20,625.00 $18,562.50 $18,562.50 122% 6.3.2014 47.8t Mid range 22 12:15 Substantial $30,000.00 $15,000.00 No adjustment $11,250.00 $10,125.00 $10,125.00 112% 6.3.2014 52.2t 23 13:54pm Severe $55,000.00 $27,500.00 Not applicable $20,625.00 $18,562.50 $18,562.50 122% 7.3.2014 52.76t 24 8:32 Severe $60,000.00 $30,000.00 Not Applicable $22,500.00 $20,250.00 $20,250.00 124% 7. 3.2014 48.72t Mid range 25 10:20 Substantial $30,000.00 $15,000.00 No adjustment $11,250.00 $10,125.00 $10,125.00 114% 10.3.2014 48.92t High range+25% 26 10:03 Substantial $30,000.00 $15,000.00 $18750.00 $14,062.50 $12,656.25 $12,656.25 115% 10.3.2014 55.24t 27 12:28 Severe $72,500.00 $36,250.00 Not applicable $27,187.50 $24,468.75 $24,468.75 129% 28 11.3.2014 50.80t $30,000.00 $15,000.00 High range+25% $14,062.50 $12,656.25 $12,656.25 14:05 Substantial: 119% $18750.00 12.3.2014 48.56t Mid range 29 15:09 Substantial $30,000.00 $5,000.00 No adjustment $11,250.00 $10,125.00 $10,125.00 114% 12 3.2014 51.84t 30 13:51 Severe $52,500.00 $26,250.00 Not applicable $19,687.50 $17,718.75 $17,718.75 121% 17.3.2014 51.04t 34 13:14 Severe $50,000.00 $25,000.00 Not applicable $18,750.00 $16,875.00 $16,875.00 120% 19.3.2014 51.54t 37 14:45 Severe $52,500.00 $26,250.00 Not applicable $19,687.50 $17,718.75 $17,718.75 121% 20.3.2014 52.92t 39 12:19 Severe $60,000.00 $30,000.00 Not applicable $22,500.00 $20,250.00 $20,250.00 124% 26.3.2014 52.04t 42 12:24 Severe $55,000.00 $27,500.00 Not applicable $20,625.00 $18,562.50 $18,562.50 122% 7.8.2014 52.26t 49 12:54 Severe $55,000.00 $27,500.00 Not applicable $20,625.00 $18,562.50 $18,562.50 122% 25.8.2014 58.62t 53 13:29 Severe: $92,500.00 $46,250.00 Not applicable $34,687.50 $31,218.75 $31,218.75 120% 27.8.14 51.4t 55 11:59 Severe $50,000 $25,000.00 Not applicable $18,750.00 $16,875.00 $16,875.00 120% 4.9.14 57.32 58 08:30 Severe $85,000.00 $42,500.00 Not applicable $31,875.00 $28,687.50 $28,687.50 134% GRAND TOTAL $594,843.75 Amendments 24 August 2017 - [47]-[65] - formatting amended 10 November 2017 - Amended representatives for defendant in coversheet 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: 10 November 2017