Land and Environment Court New South Wales Medium Neutral Citation: Environment Protection Authority v Toll Global Forwarding Pty Limited [2018] NSWLEC 11 Hearing dates: 20 September 2017 Date of orders: 16 February 2018 Decision date: 16 February 2018 Jurisdiction: Class 5 Before: Robson J Decision: See orders at [123] Catchwords: OFFENCES AND PENALTIES: sentencing – plea of guilty to an environmental offence – transport of dangerous goods – failure to comply with dangerous goods regulatory scheme – degree of objective seriousness – where defendant consignor of goods – where other parties to the offence already sentenced – foreseeability of environmental harm – subjective circumstances of the defendant – early plea of guilty – utilitarian nature of plea – contrition and remorse – no previous convictions – good character – low likelihood of reoffending – cooperation with investigation – specific and general deterrence – principle of totality – fine imposed Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) Dangerous Goods (Road and Rail Transport) Act 2008 (NSW) Dangerous Goods (Road and Rail Transport) Regulation 2014 (NSW) Road Rules 2008 (NSW) Cases Cited: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 Bentley v BGP Properties Pty Limited [2006] NSWLEC 34; (2006) 145 LGERA 234 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Environment Protection Authority v Ballina Shire Council [2006] NSWLEC 289; (2006) 148 LGERA 278 Environment Protection Authority v Barnes [2006] NSWCCA 246 Environment Protection Authority v Borg Panels Pty Ltd [2016] NSWLEC 71 Environment Protection Authority v Capdate Pty Ltd (1993) 78 LGERA 349 Environment Protection Authority v Custom Chemicals Pty Ltd [2016] NSWLEC 146 Environment Protection Authority v Davis [2005] NSWLEC 643 Environment Protection Authority v Embridge Crest Pty Ltd [2002] NSWLEC 238 Environment Protection Authority v George Weston Foods Limited [2013] NSWLEC 16 Environment Protection Authority v Hill; Environment Protection Authority v Stockwell International Pty Ltd [2017] NSWLEC 72 Environment Protection Authority v Kitco Transport Australia Pty Ltd [2013] NSWLEC 39 Environment Protection Authority v MacDermid Overseas Asia Ltd [2007] NSWLEC 225 Environment Protection Authority v Manfreight Overseas Asia Ltd [2015] NSWLEC 6 Environment Protection Authority v Moama Refinery Pty Ltd [2002] NSWLEC 244 Environment Protection Authority v Patrick Distribution Pty Ltd [2006] NSWLEC 123; (2006) 144 LGERA 210 Environment Protection Authority v Ravensworth Operations Pty Ltd [2012] NSWLEC 222 Environment Protection Authority v Robinson [2004] NSWLEC 629 Environment Protection Authority v Toll North Pty Ltd (Downing Centre, Local Court, 21 October 2014, no written judgment available) Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299 Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 Liverpool City Council v Leppington Pastoral Co Pty Ltd [2010] NSWLEC 170 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 R v Thomson (2000) 49 NSWLR 383; [2000] NSWCCA 309 Waldon v Hensler (1987) 163 CLR 561 Texts Cited: Australian Code for the Transport of Dangerous Goods by Road and Rail Category: Sentence Parties: Environment Protection Authority (Prosecutor) Toll Global Forwarding Pty Limited (Defendant) Representation: Counsel: S Callan (Prosecutor) B D Hodgkinson SC (Defendant) Solicitors: Office of Environment and Heritage (Prosecutor) Herbert Smith Freehills (Defendant) File Number(s): 2016/00307293 Publication restriction: Nil Judgment 1. The defendant in the proceedings, Toll Global Forwarding Proprietary Limited ('Toll Global') has pleaded guilty to an offence under s 9(1) of the Dangerous Goods (Road and Rail Transport) Act 2008 (NSW) ('Dangerous Goods Act'). The offence is that it failed to ensure that dangerous goods transported by road were transported in a safe manner. The dangerous goods were approximately 16,066 kilograms of expandable polymeric beads ('dangerous goods'), and were transported by road on 17 October 2014 ('incident'). 2. The prosecutor, Environment Protection Authority ('EPA') commenced the proceedings by way of Summons on 14 October 2016, with an Amended Summons being issued on 25 May 2017. Separate proceedings were commenced against related defendants, being Stockwell International Pty Ltd ('Stockwell') and Darren Hill. Both defendants also pleaded guilty and proceeded to a hearing on sentence before Pain J in May 2017 (see Environment Protection Authority v Hill; Environment Protection Authority v Stockwell International Pty Ltd [2017] NSWLEC 72 ('EPA v Hill; EPA v Stockwell'). 3. Toll Global pleaded guilty to the charge on 26 May 2017, and accordingly the task before the Court is to determine the appropriate sentence. Background Facts 1. The parties filed a comprehensive Statement of Agreed Facts on 3 August 2017 ('SOAF'), which I adopt and summarise below. 2. In summary, Toll Global was the consignor engaged to transport the dangerous goods by road, and Stockwell was engaged to transport the goods. Stockwell arranged for Darren Hill to drive the vehicle containing the dangerous goods. 3. Toll Global is part of the Toll Group, and is in the business of international freight forwarding and customs clearance services for goods, including dangerous goods. It provides an occasional service of arranging the transportation of dangerous goods by road in NSW to approximately 10 of its customers. 4. Stockwell is in the business of customs brokerage and freight forwarding of dangerous goods including transport by road in NSW. Stockwell was engaged in the transport of dangerous goods in NSW on a regular basis, with dangerous goods constituting approximately 10 to 20% of the total freight it transported. 5. As noted above, the dangerous goods in these proceedings comprised expandable polymeric beads, which are designated by the Australian Dangerous Goods Code ('ADG Code') as "Polymeric beads, expandable, evolving flammable vapour" and a Class 9 Dangerous Good. If combusted, expandable polymeric beads burn with a dense emission of soot, carbon monoxide, carbon dioxide, styrene and aliphatic hydrocarbons that are harmful to human health and the environment. 6. Toll Global was engaged by Rmax Rigid Cellular Plastics ('Rmax') to act as its customs broker in relation to the dangerous goods which were being purchased from a manufacturer in China. Rmax requested that Toll Global engage a prime contractor to transport the dangerous goods from Port Botany to Rmax's premises at Smithfield. The dangerous goods were packed in 20 flexible intermediate bulk containers ('IBCs'), and each IBC was marked with a dangerous goods diamond logo that indicated that the dangerous goods were Class 9 dangerous goods, and displayed the words "Caution! Keep away from all sources of ignition. Keep in a cool, well-ventilated place." 7. At the time of the offence, Toll Global arranged transport by road of dangerous goods through its NSW Transport Operations Team ('Operations Team') using the following steps: 1. the Operations Team would generate a report registering the shipment and generate a notice of arrival in port of containers requiring transport by road, with loads containing dangerous goods being marked in the report as "Hazardous"; 2. a member of the Operations Team would inform the transport company of a requirement to make a timeslot booking to collect the shipping container with the operator of the container port facility ('timeslot request'); 3. a member of the Operations Team would select a transport company from the customer's nominated subcontractor list and would send them the timeslot request; and 4. if the container contained dangerous goods, pursuant to Toll Global's "Seafreight Transport Standard Operating Procedure" (Revision 5, dated 13 December 2011) ('Operating Procedure'), a member of the Operations Team would send the transport company certain information, including the hazardous substance paperwork ('HAZ paperwork'), which is provided to Toll Global by its customers. 1. Toll Global did not have written contracts in place with Stockwell which set out its obligations, or the obligations of Stockwell and its subcontractors, regarding compliance with dangerous goods requirements. 2. As a matter of usual practice, Stockwell would request transport documentation from its customers, or if that did not occur, the transport allocator would prepare transport documentation for the dangerous goods based on information contained in any document sent as part of the engagement. However, Stockwell never requested any transport documentation from Toll Global. 3. Once dangerous goods had been unpacked from the shipping container, Stockwell would allocate the job to a driver, and it was Stockwell's responsibility to ensure that the driver and vehicle were licenced to transport dangerous goods by road. While Stockwell maintained a register of employees who held licences, including dangerous goods driver licences, at the date of the incident, Stockwell did not employ any drivers with a dangerous goods driver licence. Stockwell accordingly regularly engaged other transport companies, and in this instance engaged NDS Transport Pty Ltd ('NDS Transport') as subcontractors to provide drivers and vehicles to transport the dangerous goods. 4. At all material times, Stockwell had neither a register nor adequate system for checking whether the drivers or vehicles of subcontractors used to transport dangerous goods were licenced. Nor did Stockwell have written contracts in place with subcontractors regarding compliance with dangerous goods requirements. Further, Stockwell did not have any policies or procedures in place specific to the transport of dangerous goods, nor did it provide training prior to the incident regarding dangerous goods requirements to employees who were involved in the transport of dangerous goods by road. 5. At all material times, Mr Hill was an employee of NDS Transport, and held a Heavy Combination class licence issued by the Roads and Maritime Services ('RMS'). From 16 April 2014 to 6 April 2016, Mr Hill was not licensed to drive vehicles to transport dangerous goods by road, though Mr Hill had previously held a dangerous goods licence from 30 March 2001 to 15 April 2014. 6. Mr Hilll had previously been engaged by Stockwell to transport expandable polymeric beads to Rmax's premises on a number of occasions prior to the incident. Soussan Shaikho, the sole director of NDS Transport, was not made aware by Stockwell or Mr Hill of the nature of any of the goods being transported by Mr Hill for Stockwell. NDS Transport did not have any policies or procedures regarding the transport of dangerous goods by road. Regulation of the transport of dangerous goods by road 1. The transport of dangerous goods by road in NSW is regulated by the Dangerous Goods Act and the Dangerous Goods (Road and Rail Transport) Regulation 2014 ('Dangerous Goods Regulation'), which incorporates provisions from the Australian Code for the Transport of Dangerous Goods by Road and Rail ('Dangerous Goods Code'). 2. Dangerous goods are defined in s 4 of the Dangerous Goods Act as: dangerous goods means: (a) a substance or article prescribed by the regulations as dangerous goods, or (b) a substance or article determined by a Competent Authority in accordance with the regulations to be dangerous goods. 1. The objects of the Dangerous Goods Regulation are set out in cl 3. They are: (a) to set out the obligations of persons involved in the transport of dangerous goods by land transport, and (b) to reduce as far as practicable the risks of personal injury, death, property damage and environmental harm arising from the transport of dangerous goods by land transport, and (c) to give effect to the standards, requirements and procedures of the ADG Code so far as they apply to the transport of dangerous goods by land transport, and (d) to promote consistency between the standards, requirements and procedures applying to the transport of dangerous goods by land transport and other modes of transport. 1. The requirements for the transport of dangerous goods by road are contained in the Dangerous Goods Code, with Ch 11.1 setting out the relevant documentation for vehicles transporting dangerous goods. The transport documentation is to show the name of the consignor, the contact number of a telephone advisory service of the consignor, and to provide answers to any questions about the dangerous goods being transported. 2. Division 2, Pt 11 of the Dangerous Good Regulation requires a vehicle transporting dangerous goods to carry emergency information that complies with Ch 11.2 of the Dangerous Goods Code. Clause 5.3.3.2 of the Dangerous Goods Code requires this information to be placarded on the IBCs, being placardable units, through an emergency information panel. It provides: A placardable unit that contains dangerous goods, or has contained dangerous goods and is not free from dangerous goods, must be placarded with emergency information panels as specified in 5.3.1.1. 1. The information to be included on the emergency information panels includes the correct shipping name of the dangerous goods, the UN number (a four digit number which identifies dangerous goods), the relevant class label (and subsidiary risk label if any), the Hazchem code (which informs emergency services of the appropriate action and equipment required should an incident occur), and an emergency contact number. 2. In addition to the emergency information panels on the IBCs, cl 5.3.6.1.1 of the Dangerous Goods Code requires all road vehicles transporting a load of dangerous goods which requires placarding ('placard load') to have further placards as follows: All road vehicles transporting a placard load of dangerous goods, as determined from Table 5.3, must be placarded in accordance with 5.3.1.4 on the front and rear with placards indicating what dangerous goods are being carried. 1. The parties agree that the appropriate placard for a vehicle transporting one or more IBCs of the same product would be a class label at the front and rear of the vehicle, unless the emergency information panels on the IBCs could be clearly seen from both sides and the rear. 2. Clause 12.1.3.2 of the Dangerous Goods Code requires vehicles to carry protective and safety equipment: A road vehicle transporting a placard load of dangerous goods must carry the personal protective equipment and safety equipment specified in Table 12.2 for all the dangerous goods in the load, based on their primary hazards and any subsidiary risks, subject to any conditions incorporated in the table and its explanatory notes. 1. The Dangerous Goods Code also requires the vehicle to be fitted with a 308 dry powder fire extinguisher. 2. Rule 300-2 of the Road Rules 2008 (NSW) prohibits the transport of dangerous goods in prohibited areas. The incident 1. Between 1 April 2014 and 1 October 2014, Toll Global engaged DGL (Aust) Pty Ltd ('DGL') to transport loads of expandable polymeric beads from Port Botany to Rmax's premises at Smithfield on approximately 14 occasions. On each of these occasions DGL subcontracted the transport of the goods to Stockwell. On or about 1 October 2014, Toll Global received an email from DGL instructing Toll Global to notify its subcontractor, Stockwell, of the date on which the dangerous goods would be available. 2. At the time Toll Global understood that, while its engagement would remain with DGL, relevant paperwork should be provided directly to Stockwell. Despite this misunderstanding, Toll Global accepts that it engaged Stockwell by way of an employee of the Operations Team sending emails to Stockwell regarding the transport of the dangerous goods ('Engagement Documents'). The Engagement Documents contained instructions for the transport of the goods and information detailing that the goods were hazardous, and were "expandable polymeric beads F-105, 16MTS". However, the Engagement Documents did not meet the definition of "transport documentation" in s 4 of the Dangerous Goods Act and cl 9 of the Dangerous Goods Regulation as they did not comply with Ch 11.1 of the Dangerous Goods Code. 3. The dangerous goods arrived in a shipping container at DP World container terminal on 7 October 2014, and Stockwell engaged Les Kearney Transport to transport the goods to Stockwell's premises. Mr Kearney transported the goods on 9 October 2014, however did not have a licence to drive vehicles to transport dangerous goods by road at the relevant time. 4. On or about 17 October 2014, Stockwell's warehouse manager telephoned Mr Hill to request he transport the dangerous goods from Stockwell's premises to Rmax's premises. The vehicle Mr Hill drove was owned by and registered to NDS, and was not licenced to transport dangerous goods. Mr Hill was not informed that the goods were dangerous goods. Mr Hill had, however, previously received training in relation to dangerous goods, and was aware from this training that a black diamond and UN number on a label indicates that the contents of the package are dangerous goods. Prior to 17 October 2014, Mr Hill had, on a number of occasions, been involved as a loader and driver in the transport of expandable polymeric beads from Stockwell to Rmax. 5. The route taken by Mr Hill from Stockwell's premises to Rmax's premises involved driving through the tunnel on General Holmes Drive and the tunnels on the M5 Motorway between Bexley Road, Bexley North and General Holmes Drive, Kyeemagh. The tunnels are prohibited areas for the transport of dangerous goods by road pursuant to r 300-2 of the Road Rules 2008 (NSW), and there are large red signs stating "NO DANGEROUS GOODS IN TUNNELS" posted along the route taken by Mr Hill. There were a number of alternate routes that Mr Hill could have taken to avoid the prohibited area, though the route selected by Mr Hill was the most direct route. 6. During the journey, Mr Hill's vehicle was not appropriately placarded, was not carrying dangerous goods transport documentation, fire extinguishers, or the required emergency information in a manner that complied with the Dangerous Goods Regulation. 7. Mr Hill's vehicle was stopped at the Heavy Vehicle Checking Station ('checking station') on the M5 Motorway at Kingsgrove at 10:42am by Neil Brencher, an inspector of the RMS, and an authorised officer under the Dangerous Goods Act. Mr Brencher inspected the vehicle, conducted an interview with Mr Hill, and completed a dangerous goods checklist recording the non-compliances. Mr Brencher then contacted Stockwell to request the dispatch of a driver with a dangerous goods licence to attend the checking station with transport documentation for the dangerous goods. Stockwell arranged for a subcontracted driver to attend the checking station, and after the vehicle and the non-compliances identified by Mr Brencher were further inspected by another RMS inspector, the vehicle continued on to Rmax's premises. Toll Global's failures 1. The parties are in agreement that Toll Global did not prepare or provide to Stockwell, NDS, or Mr Hill any dangerous goods transport documentation for the dangerous goods that complied with the Dangerous Goods Code. 2. Further, the parties agree that Toll Global engaged Stockwell without undertaking any relevant checks to ensure Stockwell was capable of transporting the goods, and failed to provide instructions to Stockwell in relation to, for example, checking whether: 1. the vehicle was licenced to transport dangerous goods; 2. the driver of the vehicle was given dangerous goods transport documentation; 3. the vehicle onto which a placard load was loaded was appropriately placarded in accordance with Ch 5.3 of the Dangerous Goods Code; 4. the vehicle was equipped with the emergency information required to comply with Ch 11.2 of the Dangerous Goods Code; 5. the vehicle was equipped with fire extinguishers that complied with Pt 12 of the Dangerous Goods Code; and 6. the driver of the vehicle was instructed not to travel through prohibited areas specified in r 300-2 of the Road Rules 2008 (NSW). 1. The parties agree that Toll Global had the capacity to provide but failed to provide instructions to Stockwell regarding the engagement of subcontractors and their capability to comply with dangerous goods regulatory requirements. Further, at the time Toll Global consigned the goods, it is agreed that Toll Global did not provide adequate training or instruction to its staff who were involved in the consignment of goods for transport by road regarding the safe transport of the goods. While training in the requirement to provide transport documentation was given to members of the Operations Team during their induction, no recent refresher training was provided. The parties agree that at all times prior to the incident, these measures would have been reasonably practicable to ensure safe transport of the dangerous goods. Relevant legislation 1. Toll Global has been charged under s 9 of Dangerous Goods Act, which states: 9 Duties concerning the transport of dangerous goods (1) A person involved in the transport of dangerous goods by road or rail who fails to ensure that the goods are transported in a safe manner is guilty of an offence. (2) If a person involved in the transport of dangerous goods by road or rail fails to comply with a provision of this Act or the regulations in circumstances where the person knew, or ought reasonably to have known, that the failure would be likely to endanger the safety of another person or of property or the environment, the person is guilty of an offence. (3) It is a defence to any proceedings against a person for an offence against subsection (1) if the person proves that: (a) it was not reasonably practicable for the person to comply with the provision, or (b) the commission of the offence was due to causes over which the person had no control and against the happening of which it was impracticable for the person to make provision. Maximum penalty: 500 penalty units or imprisonment for 2 years, or both, for an individual or 2,500 penalty units for a body corporate. 1. Offences under the Dangerous Goods Act are properly characterised as environmental offences having regard to s 3 of that Act (Environment Protection Authority v Patrick Distribution Pty Ltd [2006] NSWLEC 123; (2006) 144 LGERA 210 at [48]). 2. Given Toll Global has pleaded guilty to the offence, for the purposes of sentencing the Court will have regard to the Crimes (Sentencing Procedure) Act 1999 (NSW) ('Sentencing Act'). The objects of the Sentencing Act are set out in s 3A, which provides: 3A Purposes of sentencing The purposes for which a court may impose a sentence on an offender are as follows: (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. 1. Subsections 21A(2) and 21A(3) of the Sentencing Act set out numerous aggravating and mitigating factors that the Court must take into account. The EPA accepts that there are no aggravating circumstances in the present proceedings. The mitigating factors in s 21A(3) of the Sentencing Act are: (3) Mitigating factors The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows: (a) the injury, emotional harm, loss or damage caused by the offence was not substantial, (b) the offence was not part of a planned or organised criminal activity, (c) the offender was provoked by the victim, (d) the offender was acting under duress, (e) the offender does not have any record (or any significant record) of previous convictions, (f) the offender was a person of good character, (g) the offender is unlikely to re-offend, (h) the offender has good prospects of rehabilitation, whether by reason of the offender's age or otherwise, (i) the remorse shown by the offender for the offence, 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), (j) the offender was not fully aware of the consequences of his or her actions because of the offender's age or any disability, (k) a plea of guilty by the offender (as provided by section 22), (l) the degree of pre-trial disclosure by the defence (as provided by section 22A), (m) assistance by the offender to law enforcement authorities (as provided by section 23). 1. The task before the Court is to determine a sentence to be imposed on Toll Global that is both proportionate to the objective seriousness of the offence committed, and to the personal subjective circumstances of Toll Global. I will consider each of these separately. The evidence 1. Apart from the SOAF, the evidence in the proceedings comprised two affidavits affirmed by Grant Davis, General Manager – Australia of Toll Global. In summary, Mr Davis attested to a number of issues including the structure of Toll Global, the relevant policies and procedures relating to the transportation of dangerous goods prior to the incident, Toll Global's engagement of Stockwell, the actions taken by Toll Global in response to the incident, Toll Global's vision and values, Toll Global's responsibility and community initiatives, Toll Global's cooperation with the EPA, and its remorse and contrition. Objective circumstances 1. The issues raised by the parties as relevant to the objective seriousness or gravity of the offence are: the nature of the offence; the harm caused by the incident; Toll Global's control over the causes giving rise to the offence; the foreseeability of the harm and the practical measures to prevent, control, abate or mitigate the harm caused or likely to be caused; and the maximum penalty available for the offence. 2. Considering all these circumstances, the EPA submits that the offence is in the moderate range of objective seriousness. The EPA relies on Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299 ('Waste Recycling and Processing Corporation') at [140]: The objective gravity or seriousness of the crime fixes both the upper and lower limits of proportionate punishment. It fixes the upper limit because a sentence should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in light of its objective circumstances. It fixes the lower limit because allowance for the subjective factors of the case, particularly of the offender, cannot produce a sentence which fails to reflect the objective gravity or seriousness of the offence, or the objectives of punishment such as retribution and general and individual deterrence. 1. Toll Global submits that "scales" of objective seriousness are broad concepts that are of some assistance. It observes that it was said in Environment Protection Authority v Kitco Transport Australia Pty Ltd [2013] NSWLEC 39 that the objective seriousness in that case was on the low end of the moderate scale, and submit that the level of culpability is lower in the present proceedings. Insofar as it is appropriate to draw an inference from that submission, I understand that the defendant considers the offence to be at a low level of objective seriousness. Nature of the offence 1. In determining the objective seriousness of an offence, it is necessary to have regard to its statutory context. The relevant consideration in that regard is the extent to which the defendant's conduct offends the relevant legislative objectives: see Bentley v BGP Properties Pty Limited [2006] NSWLEC 34; (2006) 145 LGERA 234; and Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253. 2. The EPA notes s 3 of the Dangerous Goods Act states that an objective of the Act is to regulate the transportation of dangerous goods so as to promote public safety and protect property and the environment. The EPA submits that this objective is also reflected in the objects of the Dangerous Goods Regulation contained in cl 3(c). 3. The EPA notes that the legislative scheme places a number of positive obligations on each of the parties in the transport chain, and submits that it is significant that the legislative objectives are directed towards the reduction of risk, rather than simply addressing the manifestation of those risks. The EPA submits that the onerous obligations placed on persons involved in the transportation of dangerous goods are reflective of the "very grave consequences" that could arise should parties fail to comply. The EPA submits that s 9 of the Dangerous Goods Act plays a fundamental role in giving effect to the purpose of the Act. 4. The EPA submits that the legislative scheme casts a wide net of responsibility over those involved in the transportation of dangerous goods, and therefore Toll Global's culpability is not diminished by reference to the obligations of others involved in the transport chain. Rather, the effectiveness of the scheme, the EPA submits, depends on compliance by all parties at all stages of the transportation of the goods. 5. The EPA refers to the fact that Mr Hill was not licenced to drive a vehicle carrying dangerous goods, nor was the vehicle itself licenced to transport dangerous goods. It further notes that the licensing scheme is aimed at ensuring that drivers transporting dangerous goods are regularly trained and medically assessed, that their driving performance is of an acceptable standard for transporting dangerous goods, and that they are aware of how to respond appropriately to an incident involving dangerous goods (as reflected in cll 193(2), 194, 195, 196, 197(2) and 199(2) of the Dangerous Goods Regulation). 6. The EPA also notes that Mr Hill was not carrying any transport documentation or emergency information as required under the Dangerous Goods Code. The EPA submits that such information is important for the purpose of informing the driver and any relevant emergency services of the nature of the dangerous goods, and allowing an appropriate response should an incident occur. Similarly, the EPA submits that the fact the vehicle did not have vehicle placards is contrary to the legislative objectives of the scheme, in that such placards are an important warning of the risks posed to persons who may come into contact with the goods. 7. The EPA submits that the purpose of the prohibition on dangerous goods being transported in certain areas, including tunnels, is that the impact of leaks, spills or fires can be more severe in confined areas, causing escalation of a fire, making escape more difficult, and hampering the access of those responding to an incident. Environmental Harm 1. The parties agree that as a result of the failures of Toll Global, Stockwell, and Mr Hill, there was an increased risk to the safety of Mr Hill, members of the public, emergency services personnel, property, and the environment. This was occasioned by the manner in which the goods were transported, in that: 1. the lack of information regarding the nature of the goods, their inherent risks and appropriate control measures on placards, emergency information, and transport documentation would: 1. cause the driver not to realise the goods were dangerous goods and thereby fail to placard the load appropriately, carry emergency response guides or safety equipment, or avoid driving through prohibited areas; 2. cause the driver or other persons to not eliminate ignition sources in the vicinity of the goods in the event of an incident, and thereby increase the risk of the goods or vapour combusting; 3. cause the driver or other persons not to initially evacuate the area in the event of an incident; 4. hinder the driver in identifying the appropriate initial response to any incident involving the goods to prevent an escalation of that incident; 5. hinder emergency services from properly identifying the goods and responding in a timely and effective way to any incident involving the goods, and so increase the risk of any incident escalating in severity; 6. prevent the driver, emergency services, EPA or RMS from identifying the name or contact number of the consignor or the contact number of a telephone advisory service to provide answers to any questions about the goods being transported in the event of an incident; and 7. cause emergency services to use inappropriate responses to any incident involving the goods, such as spraying a water jet on a fire involving the goods causing them to break apart and become more difficult to extinguish as well as producing a large amount of contaminated fire water runoff with the potential for harm to the environment and public health; 1. the absence of fire extinguishers on the vehicle meant the driver or another person could not promptly deal with any fire caused by the vehicle's engines, brakes, tyres or other sources and so heightened the risk of that fire involving the goods and a serious incident occurring; 2. the transport of the dangerous goods through the tunnels increased the risks that would have arisen if the vehicle was involved in an incident involving the goods, including: 1. the tunnel's physical dimensions and the presence of traffic hampering access by emergency services and their vehicles and escape by members of the public; 2. in the event of a fire creating a toxic and oxygen deficient atmosphere, the risk of death or serious injury to potentially large numbers of people; 3. in the event of a fire involving the dangerous goods, increased rates of heat release and radiation in a confined space causing an escalation of that fire; and 4. damage to the tunnel's infrastructure; 1. the transport of the dangerous goods on roads in open areas put the public at an increased risk of death and injury if an incident had occurred involving the combustion of the goods; and 2. the transport of the dangerous goods by an unlicensed driver created a risk that the driver was not trained in transporting the goods safely and responding appropriately to any incident involving the goods, though it is noted that in this case Mr Hill had previously held a dangerous goods licence. 1. The EPA submits, relying on Waste Recycling and Processing Corporation at [145], in assessing the objective seriousness of an offence, the Court is to consider harmfulness not only in terms of actual harm, but also in the context of the potential or risk of harm. 2. Although the incident the subject of these proceedings did not result in any harm being caused, the EPA submits that it did expose the vehicle, members of the public, the environment, property and potentially any emergency services personnel who would likely have been required to attend the scene of any incident to a risk of very serious harm. The EPA submits that the fact that the various failings by Toll Global, Stockwell and Mr Hill were discovered before they manifested into actual harm does not absolve Toll Global of culpability – rather, it was only as a result of checking of the vehicle at the checking station that a potential catastrophe was averted. 3. Toll Global submits that there was no actual harm occasioned by the commission of the offence, however it accepts the comments of Preston CJ of LEC in Waste Recycling and Processing Corporation as noted above. Toll Global submits that it was as a result of the failures of Toll Global, Stockwell and Mr Hill taken together that the potential risk arose. 4. Toll Global submits that the harm which resulted as a consequence of the offence committed was only a "theoretical" risk of harm. However, I note that in oral submissions Toll Global appeared to accept that "theoretical", in the sense in which the word was used in George Weston Foods Limited [2013] NSWLEC 16 at [77], effectively means the potential risk of harm. Toll Global submits that the purpose of providing transport documentation is to alert those down the supply chain of the goods, and notes that in the circumstances of these proceedings, those down the supply chain were already aware that the goods were dangerous goods. Toll Global submits that the relevant information that was not contained in the engagement documents, as agreed in the SOAF, was physically attached to each of the IBCs – with the result that in an emergency, emergency personnel would have been able to observe and identify the contents of the load. 5. Toll Global submits that both Stockwell and Mr Hill were in a position to know what was required to transport dangerous goods in compliance with the Dangerous Goods Act – with Stockwell being engaged to transport dangerous goods on a regular basis and having no prior convictions for offences under the Dangerous Goods Act, and Mr Hill having held a dangerous goods driver licence for a number of years and being trained accordingly. In the circumstances, while recognising that the potential risk of harm arose as a result of a collective failure of Toll Global, Stockwell and Mr Hill, Toll Global submits that it was less culpable than Stockwell and Mr Hill. Control over causes 1. The EPA submits that, by virtue of Toll Global's role as consignor of the dangerous goods as defined in s 4 of the Dangerous Goods Act, the causes that gave rise to the offence were within Toll Global's control. The EPA notes that Toll Global was the customs broker in relation to the dangerous goods, which involved arranging customs clearance and paying customs and port fees. Toll Global also arranged transportation of the dangerous goods by engaging Stockwell and providing instructions for their collection, unpacking and repacking, transport and return of the shipping container. 2. A consignor is defined in s 4 of the Dangerous Goods Act as follows: consignor of goods means a person who: (a) with the person's authority, is named or otherwise identified as the consignor of the goods in the transport documentation relating to the transport of the goods, or (b) if paragraph (a) does not apply to the person or anyone else: (i) engages a prime contractor or rail operator, either directly or indirectly or through an agent or other intermediary, to transport the goods, or (ii) has possession of, or control over, the goods immediately before the goods are transported, or (iii) loads a vehicle with the goods, for transport, at a place where the goods are awaiting collection and that is unattended (except by the driver) during loading, or (c) if paragraphs (a) and (b) do not apply to the person or anyone else, and the goods are imported into Australia—imports the goods. 1. The EPA submits that there is no dispute that Toll Global falls in the circumstances identified in subparagraph b(i). However, the EPA also contends the Toll Global falls in the circumstances identified in subparagraph (b)(ii), as Toll Global exercised control over the dangerous goods whilst at DP World, which was immediately before the dangerous goods were transported. The EPA submits that this is evidenced by the process involved – being that upon paying the port charges, Toll Global would provide a copy of the delivery order to the transport company (i.e. Stockwell), which then authorised Stockwell to collect the dangerous goods. 2. The EPA accepts that upon collection of the dangerous goods, Stockwell had complete control over the causes that gave rise to the offence, however submits that Toll Global, as consignor, was responsible for engaging Stockwell as the transport company. The EPA submits that Toll Global should have taken active steps to seek to ensure that transportation would be undertaken safely in accordance with the regulatory regime and that, in that sense, Toll Global had a level of control over the causes of the offence that cannot be reduced by reference to Stockwell's failings. 3. In response, Toll Global submits, first, that possession and control is not an element of the offence under s 9 of the Dangerous Goods Act, and without evidence which establishes beyond reasonable doubt that Toll Global exercises possession or control over the dangerous goods, there is no basis upon which the Court could make a finding to this effect: see R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 and Environment Protection Authority v George Weston Foods Limited [2013] NSWLEC 16 at [77]. 4. Toll Global accepts that it falls into the definition of a consignor as set out in s 4(1)(b)(i), but submits that the definitions in s 4(1)(b)(ii) and (iii) do not apply to it. Toll Global notes that this is the first time that a "pure" consignor has been prosecuted for an offence against s 9 of the Dangerous Goods Act, as all other cases involved charges arising in circumstances where the defendant was a consignor and also had possession and control over the dangerous goods in their premises, and were involved in the loading of the dangerous goods onto the transport vehicle (see Environment Protection Authority v George Weston Foods Limited [2013] NSWLEC 16; Environment Protection Authority v MacDermid Overseas Asia Ltd [2007] NSWLEC 225; Environment Protection Authority v Moama Refinery Pty Ltd [2002] NSWLEC 244). 5. Toll Global submits, contrary to the EPA's submission, that its role was limited to engaging the prime contractor, and that it did not have possession or control over the dangerous goods. Toll Global submits that once the dangerous goods arrived in the DP World container, they were first in the possession of DP World, then were transported by Mr Kearney to Stockwell's premises, at which point Stockwell assumed possession of the dangerous goods. From that point, the goods were loaded onto Mr Hill's vehicle and transported by Mr Hill. Toll Global submits that these facts make clear that there were two movements involving the transport of the goods, which is the subject of the charge. 6. Toll Global submits that it is not sufficient for the purposes of the definition in s4(b)(ii) to point to possession or control at some point prior to, but not immediately before, the goods were transported. On the facts, Toll Global submits that Stockwell had possession immediately prior to the dangerous goods being transported. 7. Toll Global notes the EPA's submission that the control is established by the fact that Toll Global paid the port charges that authorised the goods to be released from the DP World container wharf. Toll Global submits that payment made on or before 9 October 2014 does not establish the required immediate control necessary for the purposes of s 4(b)(ii), and that further, even if paying the charges did amount to control, once the dangerous goods had been removed from the wharf control had passed. 8. Toll Global notes there is no evidence that any of its employees had any contact with the dangerous goods, which is consistent with its role as the customs broker. Accordingly, Toll Global submits that the EPA has not established the relevant possession or control to enliven s 4(b)(ii). 9. Toll Global submits that because of Stockwell's role as "prime contractor", it should be seen as having a higher degree of culpability than Toll Global. Toll Global notes the comments of Sheahan J in Environment Protection Authority v Manfreight Overseas Asia Ltd [2015] NSWLEC 6 at [41] that: [Because of the defendant's] status as a "prime contractor" under the legislative and regulatory regime, and the "high degree of control" it had over the operation, the defendant bears a "significant responsibility" for the breach and any consequences of it. 1. Toll Global also notes that it was Stockwell who engaged and dealt with Mr Hill, and that given Mr Hill's training and experience, it cannot be maintained that the failure to provide him with the transport documentation exposed him as the driver to the potential risks. Toll Global submits that Stockwell and Mr Hill had all the information that would have been in the transport documentation available to them before the transportation of the goods commenced on 17 December. Further, Toll Global submits that, had Stockwell followed their own system, they would have prepared the transport documents, as they had all of the necessary information to be able to do so. Toll Global submits that the fact that Stockwell did not provide the Engagement Documents to Mr Hill was out of its control and notes also that there were a number of alternate routes that Mr Hill could have taken to avoid the prohibited areas. Reasonable foreseeability and practical measures 1. The EPA submits that the foreseeability of harm and the practicability of measures to prevent, control, abate or mitigate the harm caused is a relevant factor in determining objective seriousness. 2. The EPA submits that the risk of harm in the circumstances was clearly foreseeable, as a substance that is classified as a dangerous good by its nature poses a risk of harm to humans, property, and the environment. 3. The parties agree that Toll Global engaged Stockwell without checking whether Stockwell had adequate policies, procedures and systems relating to the transport of dangerous goods. The EPA submits that these simple, but fundamental measures, many of which are required under the dangerous goods legislative scheme, could have been taken by Toll Global prior to the offence occurring. 4. Further, the EPA submits that if Toll Global had complied with its own operating procedures set out in the standard operating procedures manual, for example in relation to transport documentation, the failures by Stockwell and Mr Hill may have been averted. Relevantly, the "Toll Group Dangerous Goods Policy" was effective at the time of the incident however not fully implemented. The policy provided that Toll Group would: 1. ensure employees and contractors were trained and provided with information necessary to minimise risks associated with the transportation of dangerous goods; and 2. ensure contractors are checked by Toll for dangerous goods compliance prior to their engagement. 1. Toll Global submits that it had engaged DGL to transport loads of expandable polymeric beads by road from Port Botany to Rmax's premises on approximately 14 prior occasions, and that on each of those prior occasions DGL had subcontracted the transport of those goods to Stockwell. Toll Global submits that it relied on the specialised skills and expertise of DGL, and that at the relevant time understood that its engagement would remain with DGL, though it accepts that it engaged Stockwell. Despite its concession that it was mistaken in this regard, Toll Global submits that it was reasonable, because of the correspondence between itself and DGL, for it to have assumed that its engagement would remain with DGL. This understanding, Toll Global submits, provides the circumstance in which Toll Global failed to make enquiries of Stockwell as pleaded. 2. Toll Global submits that both Stockwell and Mr Hill knew, or reasonably ought to have known, that the goods were dangerous goods for the purposes of the Dangerous Goods Act. In relation to Stockwell, Toll Global submits that the documents constituting the Engagement Documents identified that the goods were hazardous, putting Stockwell on notice. Further, Toll Global notes that the markings and signage on each of the IBCs would have also alerted Stockwell as to the nature of the goods, as would the DG labels and product labels. In relation to Mr Hill, Toll Global submits that he had held a dangerous goods driver licence for 13 years prior to the incident that had only recently expired, that the delivery docket given to Mr Hill stated "GOODS DESCRIPTION: 1 x 20", that the dangerous goods labels and product labels were clearly visible to Mr Hill when he supervised the loading of the goods into the vehicle, and that Mr Hill had previously had dangerous goods training such that he was aware that a black diamond and UN number on a label indicates dangerous goods. 3. Notwithstanding the above, Toll Global accepts that it committed the offence as set out in the Amended Summons, and that: 1. it did not prepare or provide to Stockwell, NDS or Mr Hill any dangerous goods transport document that complied with the Dangerous Goods Code; 2. it engaged Stockwell to transport the dangerous goods without undertaking any checks to ensure that Stockwell was capable of doing so in a safe manner; 3. as a result of this failure, it did not provide any instruction to Stockwell regarding the safe transport of the dangerous goods; 4. it had the capacity to provide but failed to provide instructions to Stockwell about the engagement of subcontractors and their compliance with dangerous goods regulatory requirements; and 5. it did not provide adequate training or instruction to its staff who were involved in the consignment of the dangerous goods regarding the safe transport of the goods. 1. Toll Global accepts that there was a failure in its system, and notes that as a consequence of this failure, the dangerous goods transport documentation required under the Dangerous Goods Act was not produced. Toll Global submits that this was principally a failure to provide Australian Marine Order 41 ('MO41') to Stockwell, which corresponds with the information required to be included in "transport documentation" as defined by cl 9 of the Dangerous Goods Regulation and required for compliance with Ch 11.2 of the Dangerous Goods Code. Maximum penalty 1. As noted in Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698, the maximum penalty available for an offence is reflective of the perceived gravity of an offence on the part of both Parliament and the community. The maximum penalty prescribed by Parliament for an offence against s 9 of the Dangerous Goods Act is $275,000. Conclusions on objective seriousness 1. In my opinion, the offence is in the moderate range of objective seriousness for the reasons that follow. 2. First, it is clear that Toll Global's conduct offends the relevant legislative objectives regarding the regulation and the transportation of dangerous goods and that, as the EPA submits, the legislative objectives are directed towards a reduction of risk, rather than addressing the manifestation of those risks. There is no doubt that grave consequences could have arisen from Toll Global's failure to comply. 3. Second, while I accept that the risk of harm may have resulted from the "collective failure" of Toll Global, Stockwell and Mr Hill, I further accept that the effectiveness of the statutory scheme depends on compliance by all parties at all stages of the transportation of goods. The fact that the failure of one or more parties may have contributed to the risk of harm – particularly in relation to the nature of the goods transported and the areas (such as tunnels) through which they were transported where the impact of leaks, spills or fires can be more severe – is not determinative of the seriousness of the individual failure to comply. I accept, however, that it may affect the relative culpability between the parties involved. 4. Third, the risk of environmental harm was increased by the lack of information provided by Toll Global regarding the nature of the goods, their inherent risks, and appropriate control measures. The further risks involved the manner in which the goods were transported that is, without the appropriate information, through places (including tunnels) of increased risk, and the transport of the dangerous goods by an unlicensed driver. 5. Fourth, in assessing the objective seriousness of the offence, I consider harmfulness not only in terms of the actual harm but, as stated by Preston CJ in Waste Recycling and Processing Corporation at [145], having regard to the potential for, or risk of, harm. Therefore, I do not find compelling Toll Global's submission, to the extent to which it was maintained, that there was only a "theoretical" risk of harm nor, as noted above, that the objective seriousness is reduced as a result of a suggested "collective failure" of each of Toll Global, Stockwell, and Mr Hill. 6. Fifth, I find that Toll Global was a consignor as defined in the Dangerous Goods Act. It is clear that Toll Global falls within the definition of consignor at least by virtue of s 4(b)(i). There were competing submissions as to whether Toll Global met the definition of consignor provided in s 4(b)(ii), that is, whether it had "possession of, or control over, the goods immediately before" the goods were transported. Whilst I accept that Toll Global did not have physical control over the goods in the sense that it was not directly involved in unloading the goods, I find that it nevertheless exercised a degree of constructive control. However, I do not find the distinction to be of great import given that there is no dispute that Toll Global was a consignor in any event and particularly because I find that the causes that gave rise to the offence were within Toll Global's control. 7. In that respect, I note, as the EPA submitted, that Toll Global was the customs broker and was involved in the clearing of the dangerous goods through customs. Toll Global paid the relevant customs and ports fees. It also engaged Stockwell to transport the goods and provided the instructions for the collection of the goods, their unpacking and re-packing, their transport and the return of the shipping container. I accept that in the cases to which I have been taken, the degree of physical control was greater and I take that into account. 8. Sixth, I find that the risk of harm was foreseeable. It is clear, and agreed between the parties, that Toll Global engaged Stockwell without checking whether Stockwell had adequate policies, procedures and systems in place. These are simple fundamental measures which could have been taken by Toll Global. Whilst I take into account Toll Global's submission that it had, in the past, relied on specialised skills of other transporters, in particular DGL, this does not mitigate the concern. I note the submission of Toll Global that it thought it was continuing to engage DGL, but that circumstance does not persuade me that Toll Global was taking adequate care to ensure that it acted in conformity with its legal duties. 9. Further, whilst I accept Toll Global's submission that Stockwell and Mr Hill may have known that the goods were dangerous because of the provision of documentation and/or the markings and signage on each of the IBCs, and that Mr Hill had had a dangerous goods licence for 13 years, and had undertaken dangerous goods training, these matters are not persuasive in circumstances where Toll Global had not prepared the appropriate documentation, had not undertaken any checks to ensure that Stockwell (and/or any driver) was able to transport the goods in a safe manner and did not provide any instruction to Stockwell in relation to Stockwell's own conduct or in relation to Stockwell's engagement of subcontractors. Subjective circumstances 1. In considering the subjective circumstances, the Court is to have regard to matters relating to the circumstances of Toll Global, rather than considering the offence with which it is charged. The parties advance a number of matters relevant to Toll Global's subjective circumstances, which I consider below. 2. The EPA accepts that Toll Global does not have any prior convictions, and that this accordingly should be treated as a mitigating factor pursuant to s 21A(3)(e) of the Sentencing Act. The EPA also accepts that Toll Global entered its plea of guilty at the earliest opportunity, and that is also a mitigating factor pursuant to s 21A(3)(k) of the Sentencing Act. Further, the EPA acknowledges that Toll Global has cooperated with the EPA in the investigation of the offence and the preparation of the SOAF, which is a mitigating factor under s 21A(3)(m) of the Sentencing Act. 3. Toll Global notes that, in addition to the above, the mitigating circumstances set out in s 21A(3)(a), (b), (f), (g) and (i) also apply. Remorse and contrition 1. The EPA relies on Preston CJ of LEC's observations in Waste Recycling and Processing Corporation at [203]-[214] where his Honour stated that contrition and remorse is demonstrated by an offender "taking actions" rather than offering "smooth apologies", and identified four forms of actions that would demonstrate genuine contrition and remorse being: 1. the speed and efficiency of action to rectify any harm caused or likely to continue to be caused by the commission of the offence; 2. voluntary reporting to environmental authorities of the commission of the offence and any concomitant environmental harm; 3. taking action to address the causes of the offence, such as designing and installing improved pollution prevention and control systems; and 4. the personal appearance of corporate executives in Court and their personal evidence outlining the company's genuine regret and outlining plans to avoid such offences reoccurring in the future. 1. Mr Davis in his first affidavit set out Toll Global's remorse and contrition, noting that Toll Global has recognised that there were a number of deficiencies in its system with respect to dangerous goods, including training and awareness at both operational and senior management levels, and with respect to subcontractor management. Mr Davis expressed genuine deep remorse on behalf of Toll Global and contrition in relation to its failures. 2. The EPA accepts that Toll Global has expressed remorse and contrition through Mr Davis, who is in a position of senior management and indicated in his affidavit the seriousness with which Toll Global has approached the proceedings. 3. The EPA further acknowledges that with respect to to the first and third forms of action outlined above by Preston CJ of LEC, Toll Global has taken various steps consistent with these categories. These are noted in the first affidavit of Mr Davis. The EPA submits that the second form of action identified by Preston CJ of LEC does not arise. Good character 1. Toll Global submits that it is of good character, and that its parent company Toll Group actively contributes in a very significant way to projects and initiatives for the benefit of the community. Mr Davis attests to Toll Group's commitment to carrying out its business sustainably and notes that as part of Toll Group's commitment to corporate responsibility, it promotes initiatives that support the communities in which it operates. Mr Davis attests that Toll Group also encourages an inclusive, respectful and culturally diverse workplace, and promotes environmental sustainability. 2. Mr Davis outlined Toll Group's community initiatives, being as follows: 1. Toll's Road Safety and Community Programs, which involve a contribution of over $1 million each year from Toll Group to community sponsorships that focus on promoting road safety awareness and education, and providing support for Indigenous communities and local communities experiencing disadvantage; 2. The Amy Gillett Foundation, which is a national organisation that aims to reduce the incidence of serious injury and death of bike riders in Australia. As part of Toll Group's sponsorship, it provides cash contributions, education sessions with Toll drivers and employees across Australia; has Toll vehicles carrying the Amy Gillett Foundation logo; and supports and participates in the Amy Gillett Foundation's major fundraising campaign, "Share the Road"; 3. Driver Reviver, which is a community program operated by volunteers across Australia which provides facilities to avoid driver fatigue. In 2016, Toll Group announced a long-term partnership as a major sponsor of Driver Reviver, and its intent to effectively bankroll all of its operating costs for the next three years; 4. The First and Second Step programs, which assist people to overcome drug and alcohol addiction, and to access employment opportunities. Toll Group provides the program with core financial, administrative, and technological support, as well as facilitating a variety of supported and mentored employment positions; 5. A Reconciliation Action Plan, which Toll Group first released in 2013 and later implemented an Indigenous Engagement Program through its Indigenous Engagement Steering Committee; and 6. Environmental sustainability. Toll Group's Environment Policy sets out Toll Group's commitments to the environment. Toll Group has also implemented a number of environmental programs, including the "Smarter Green" program which aims to respond to the key impacts that the operations of Toll Group has on the environment. Cooperation with authorities 1. Toll Global submits, and, as noted above, the EPA accepts, that it has fully cooperated throughout the course of these proceedings. This is also evident from Mr Davis' first affidavit, where he notes that Toll Global has: 1. provided a comprehensive response to a statutory notice to provide information and records; 2. attended regulatory record of interviews for several hours; 3. provided the EPA with detailed information to clarify a number of factual matters relating to the charge; and 4. worked with the EPA to prepare the SOAF. Measures taken to prevent re-occurrence 1. The parties note in the SOAF that Toll Global submits it has undertaken a number of actions following the incident, being: 1. conducting an internal investigation which identified what happened, the causes of the incident, and the necessary corrective measures; 2. ceasing to engage Stockwell to transport dangerous goods by road, instead engaging Toll Chemical Logistics to transport expandable polymeric beads on behalf of Rmax from Rmax's premises to Port Botany; 3. developing a "Release of Dangerous Goods Form" which requires a carrier that transports dangerous goods by road, who is engaged by Toll Global or by a customer of Toll Global, to certify compliance with dangerous goods requirements before Toll Global will release the delivery order to the carrier; and 4. providing training to members of the NSW Transport Operations Team and senior management regarding dangerous goods requirements. 1. Toll Global accepts, as noted in the SOAF, that each of these actions were reasonably practicable and could have been put in place by Toll Global prior to 17 October 2014. Conclusion on subjective circumstances 1. I accept that Toll Global has demonstrated remorse and contrition, and that it has taken genuine steps to prevent it from committing any future offence as a consignor under s 9 of the Dangerous Goods Act, as evidenced by the affidavits of Mr Davis. I also take into account the fact that Toll Global has not had any previous convictions under s 9 of the Dangerous Goods Act, that it cooperated with authorities in relation to the proceedings, and that it is of good character. I also note and accept that Toll Global entered its guilty plea at the earliest available opportunity. 2. Taking into account the utilitarian value of Toll Global's plea pursuant to ss 21A(3)(k) and 22(1)(a) of the Sentencing Act and applying R v Thomson (2000) 49 NSWLR 383; [2000] NSWCCA 309, I find it appropriate to afford a discount of 25% on the sentence that would otherwise have been imposed for Toll Global's offence. Deterrence 1. The purpose of general deterrence in the context of environmental offences was discussed by Preston CJ of LEC in Environment Protection Authority v Ballina Shire Council [2006] NSWLEC 289; (2006) 148 LGERA 278 at [65]-[68]: [65] The sentence of the Court is an important denunciation of the conduct of the defendant. [66] The sentence must also serve as a public deterrent. It is the duty of the Court to see that the sentence which is imposed will operate as a powerful factor in preventing the commission of similar crimes by those who might otherwise be tempted by the prospect that only a light punishment will be imposed: R v Rushby (1977) 1 NSWLR 594 at 597–598. [67] This factor is particularly relevant to environmental offences. Persons will not be deterred from committing environmental offences by nominal fines: Environment Protection Authority v Capdate Pty Limited (1993) 78 LGERA 349 at 354; and Director-General, National Parks and Wildlife v Wilkinson [2002] NSWLEC 171 (27 September 2002) at [85] and [93]. [68] The deterrent effect of a fine must send an important message that laws requiring the conservation of the environment and compliance with approvals to carry out activities that may harm the environment, must be complied with. Also, the community must be satisfied that, by the Court's sentence, the offender is given his just desserts. 1. The EPA notes the comments of the Court of Appeal in Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 367 that: Those who handle dangerous chemicals must be regarded as under a heavy obligation to the rest of the community to do so with the utmost care. This Court should not be seen to send any message other than that. 1. The EPA submits that the transport of dangerous goods by road creates a significant risk of harm to human health, property, and the environment if it is not carried out in strict compliance with the legislative scheme. Accordingly, the EPA submits that the penalty imposed by the Court should incorporate the need for general deterrence to ensure that those involved in the transport of dangerous goods do so lawfully and safely, so as to minimise the risk of harm to others. 2. The EPA also submits that there is a need for specific deterrence in the circumstances as, despite the fact that Toll Global has taken steps to address the causes giving rise to the offence, there is still a need to ensure that Toll Global is vigilant in ensuring compliance with its legislative obligations. The EPA submits that given Toll Global's deficiencies as exposed in the incident, the Court ought to send a strong message by way of specific deterrence such that Toll Global takes and maintains proactive steps to ensure compliance with the regulatory regime. 3. Toll Global accepts that general deterrence is an important consideration, however submits that care must be taken to ensure that the penalty imposed does not cause a particular defendant to bear an unfair burden of community education, as noted in Waldon v Hensler (1987) 163 CLR 561 at [570]; Environment Protection Authority v Robinson [2004] NSWLEC 629 at [31]; Environment Protection Authority v Davis [2005] NSWLEC 643 at [27]. Toll Global submits that the fundamental objective of sentencing is proportionality having regard to the objective and subjective circumstances, and that the deterrent aspect of a sentence is subservient to this primary objective. 4. In relation to the EPA's submissions regarding specific deterrence, Toll Global submits that the Court can be confident that it has taken appropriate measures to avoid any future offences in their role as consignor under s 9 of the Dangerous Goods Act. Accordingly, Toll Global submits that specific deterrence is not necessary, or alternatively, should not be a significant factor in determining the appropriate penalty. 5. I note the submissions and evidence and accept the comments in Environment Protection Authority v Ravensworth Operations Pty Ltd [2012] NSWLEC 222, where Sheahan J stated: [48] Specific deterrence is a purpose of sentencing under s 3A(b) of the [Sentencing Act] and has been considered relevant where a defendant continues in the same area of operation in which an incident has occurred. In taking specific deterrence into account in Environment Protection Authority v Moolarben Coal Operations Pty Ltd (No 2) [2012] NSWLEC 80 (Moolarben (No 2)) Craig J cited at [113] the following passage in Axer at 359 per Mahoney JA: The legislation does not seek merely to prevent deliberate or negligent pollution. It envisages that, at least in many cases, proper precautions must be taken to ensure that pollution does not occur. Experience has shown that it is not enough merely to take care: accidents will happen. The legislation envisages that in many cases care must be supplemented by positive precautions; business must be arranged and precautions taken so as to ensure that pollution will not occur. [49] Specific deterrence is appropriate for corporate defendants to catalyse rehabilitation so that the company takes the required steps to prevent repetition (See BJ Preston, "Principled Sentencing for Environmental Offences", a paper presented to the 4th International IUCN Academy of Environmental Law Colloquium, 16 - 20 October 2006 at p 5.) 1. Taking the above matters into account, I find that there is a need for general deterrence. In relation to environmental offences, general deterrence is of some primacy and this has been stated in many cases. Persons will not be deterred from committing such offences by only nominal fines and the purpose of general deterrence is particularly relevant in an industry involving the transport of dangerous goods. Further, I find that there is a need for specific deterrence in these proceedings as Toll Global continues to engage in transport activities. Whilst I accept that Toll Global has accepted responsibility and has adopted measures to prevent re-occurrence of the conduct that led to this offence, I find there is a need for specific deterrence to serve as a reminder to Toll Global that it should remain vigilant in that regard. Appropriate sentence 1. In circumstances where two or more defendants are charged in relation to the same offence, the parity principle requires proportionality in sentencing to reflect the different circumstances of the co-offenders and their different degrees of criminality: see Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 at 301 and Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [28]-[32]. 2. In related proceedings EPA v Hill; EPA v Stockwell before Pain J, Stockwell was sentenced to a fine of $84,000 and ordered to pay the EPA's legal costs in the amount of $27,000, and Mr Hill was fined $2,800 and ordered to pay the EPA's legal costs as agreed or assessed (it is noted that the maximum penalty is significantly lower for Mr Hill, being an individual). The conduct of Stockwell in relation to the incident is noted above. I find that Stockwell is marginally more culpable, however, repeat my findings above that the incident was a "collective failure" of the parties. 3. In determining the appropriate sentence to be imposed on Toll Global, I take into account the objective circumstances of the offences and the subjective circumstances of Toll Global, adopting an instinctive synthesis approach as set out in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [26]; and Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [51]. I further take into account the purposes of sentencing as set out above, and the need for the Court to ensure that Toll Global is held to account for its offence in a manner that is proportionate to the seriousness of the offence against s 9 of the Dangerous Goods Act, see Environment Protection Authority v Custom Chemicals Pty Ltd [2016] NSWLEC 146 at [110]. 4. For the purposes of consistency of sentencing, I am also required to take into account comparable cases for like offences, though I note Preston CJ's observations in Waste Recycling and Processing Corporation at [227] that each case is different and turns on its unique facts. 5. The EPA has directed the Court to a number of comparable cases, including Environment Protection Authority v Moama Refinery Pty Limited [2002] NSWLEC 244; Environment Protection Authority v Embridge Crest Pty Ltd [2002] NSWLEC 238; Environment Protection Authority v Patrick Distribution Pty Ltd [2006] NSWLEC 123; Environment Protection Authority v MacDermid Overseas Asia Ltd [2007] NSWLEC 225; Environment Protection Authority v George Weston Foods Limited [2013] NSWLEC 16; Environment Protection Authority v Kitco Transport Australia Pty Ltd [2013] NSWLEC 39; Environment Protection Authority v Mainfreight Distribution Pty Ltd [2015] NSWLEC 6; and Environment Protection Authority v Toll North Pty Ltd (Downing Centre, Local Court, 21 October 2014, no written judgment available). 6. Toll Global disputes the relevance of the cases referred to by the EPA, submitting that each of them contain factors not present in this matter that rendered the defendants in those matters more culpable relative to the defendant in these proceedings. Toll Global submits that the correct approach is to have regard to those matters where the offender has been charged for a breach of its duty as consignor. This follows Pain J's approach in EPA v Hill; EPA v Stockwell where her Honour stated at [64] that "The cases with facts most similar to Stockwell's role as transporter are MacDermid and Mainfreight" (emphasis added). In the circumstances, Toll Global submits that the most comparable case is Environment Protection Authority v George Weston Foods Limited [2013] NSWLEC 16, however notes that the offence in that case was a more serious breach of the Dangerous Goods Act. 7. The EPA submits that the offence warrants the recording of a conviction and the imposition of a fine, and that in the circumstances, a small or nominal fine would not satisfy the element of deterrence required, nor the element of punishment: see Environment Protection Authority v Capdate Pty Ltd (1993) 78 LGERA 349 at 354. The EPA also seeks an order that Toll Global pay its professional costs pursuant to s 257B of the Criminal Procedure Act 1986 (NSW) as agreed or assessed. It is anticipated that the EPA's professional costs will be in the order of $50,000. 8. The EPA notes that while, pursuant to the Environment Protection Authority v Barnes [2006] NSWCCA 246, costs can be taken into account as part of the consideration of the penalty, an order to pay costs is not generally a reason for reducing the penalty otherwise imposable: see Liverpool City Council v Leppington Pastoral Co Pty Ltd [2010] NSWLEC 170 at [50]. 9. I have had regard to the matters considered by the Court in the decisions referred to the parties. I was assisted by the detailed summaries of the relevant facts and findings attached to the EPA's written submissions and the further analysis of the cases in Toll Global's submissions. Further, I have had close regard to the analysis of the cases undertaken by Pain J in EPA v Hill; EPA v Stockwell. 10. Nevertheless, as noted above, each case turns upon its particular facts and caution must be exercised in considering other cases because of the "inevitable disparity between subjective and objective circumstances applicable to those cases, compared to the same circumstances found to exist in this case" (Environment Protection Authority v Borg Panels Pty Ltd [2016] NSWLEC 71 at [45]). 11. Having considered all the objective and subjective circumstances in this case, the sentences imposed in comparable cases, and the need for specific and general deterrence, I consider the appropriate sentence is to be a fine in the sum of $100,000 with a discount of 25% for the early guilty plea. Orders 1. The orders of the Court are: 1. The defendant is convicted of the offence as charged in the Summons. 2. The defendant is fined the sum of $75,000. 3. The defendant is to pay the EPA's legal costs as agreed or assessed. ********** 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: 20 February 2018