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Overloading fine increased on appeal

July 13, 2018

A transport company carrying a load of potatoes was intercepted at a weighing station in Launceston and found to have exceeded the legal limit the trailer could carry by 3.5 tonne. On appeal, the owner has had his initial fine of $850 increased to $4,500 (less a 20% discount for an early guilty plea).

In Roberts v Redpath Haulage Pty Ltd (2018) Supreme Court of Tasmania, Judge Geason agreed with the prosecution that the initial fine was manifestly inadequate.

The facts

On 3 June 2016 on the Bass Highway at Forest Farm, Meander Valley, Mr McCall, a driver employed by Redpath Haulage, was caught driving a 3-axle rigid truck towing a tandem axle pig trailer.

While the truck was within its weight limits, the trailer was weighed at 18.8 tonne, exceeding its legal limit by 3.8 tonne.

The company was fined for breaching s 96(1), which constitutes an offence under s 183(2) of the Heavy Vehicle National Law (HVNL) – a severe risk breach of mass requirement applying to a heavy vehicle.

In his initial defence, the respondent, Mr Redpath, said the overloading situation was one where he was entirely reliant upon the person loading the vehicle and the driver of the vehicle itself to ensure that there was compliance with the legislation.

One of the reasons the appeal was successful was that prosecution put forward that under the HVNL, there are requirements on parties in the Chain of Responsibility (CoR), including registered operators, owners and employers, to take all reasonable steps to ensure compliance with specified standards, including those related to mass, dimension and loading requirements.

Also, the prosecution brought to the court’s attention the s 594(1): “the implications and consequences of a contravention of a mass, dimension or loading requirement when deciding the kind and level of sanction to be imposed for the contravention.”

The prosecution also drew attention s 594(2)(c), which relates to “severe risk” breach cases. They are:

(c) a severe risk breach of a mass, dimension or loading requirement involves 1 or more of the following—

(i) an appreciable risk of harm to public safety or the environment;

(ii) a serious risk of accelerated road wear;

(iii) a serious risk of 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.”

It also put forward that s 596(3) of the HVNL provides that if a body corporate is found guilty of an offence, the court may impose a maximum fine equal to five times the maximum fine for an individual.

The maximum penalty in this case is $62,500.

The prosecutor stated the magistrate in the initial finding ignored the fact that Redpath Haulage had no system in place to ensure compliance, recording only the fact that Mr Redpath was reliant upon the person loading the vehicle.

No system in place

The prosecutor added that the magistrate also ignored the fact that the respondent had had significant time between the date of the offence and the date of court to implement a system for the management of the risk of overloading, but had not done so.

It was brought to the court’s attention that Redpath’s had three relevant prior matters involving similar circumstances. (Each was dealt with on infringement notice and it is reasonable to infer was less serious than this offence.)

The prosecutor pointed out that in the context of the statutory maximum, the fine was imposed on Mr Redpath represented less than 2% of the maximum penalty for the offence.

The prosecutor referred the Court to the Tasmanian Sentencing Advisory Council records that identified two other sentences imposed for breaches of s 96(1) of the HVNL by bodies corporate were each fined $4,000 or more.

The judgment

When imposing a heftier penalty, Judge Geason took into account that even though Redpath Haulage was not currently profitable, the previous breaches were of the same kind.

“They evidence a cavalier attitude to compliance with relevant standards,” Judge Geason said.

“Noting the respondent’s financial circumstances, but also the need for a penalty which serves the need for general deterrence, I consider that the appropriate penalty is a fine of $4,500.”

The penalty was discounted by 20% for an early guilty plea.

No excuses

As you can learn from this recent case, penalties can be used to deter others from committing the same offences under the HVNL.
The prosecution rightly noted that the offender in this case had not taken all reasonable steps to ensure compliance but had incorrectly relied on others to be compliant.

Under CoR laws, that’s basically breaking rule #1.

Don’t find yourself in the same situation. Subscribe to CoR Adviser to know what you must do to avoid breaching CoR laws and reduce your risk of being non-compliant. Remember, the rules place even more onus on executives from 1 October 2018.

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