Australia: Penalties for a failure to comply with transport of dangerous goods obligations: Environment Protection Authority v Mainfreight Distribution Pty Ltd [2015] NSWLEC 6

A freight distributor received a hefty penalty for breaches of Dangerous Goods legislation using a truck owned by a third party.

Mainfreight Distribution Pty Ltd (Mainfreight), was charged with being "a person involved in the transport of dangerous goods by road", and failing "to ensure that [they] were transported in a safe manner" under section 9 of the Dangerous Goods (Road and Rail Transport) Act 2008 (DG Act).

Mainfreight is a freight distribution company engaged in the storage and transport of freight, including dangerous goods, both intra-state and inter-state.

THE CIRCUMSTANCES LEADING TO THE CHARGE

In early November 2011, Mainfreight loaded goods, including dangerous goods, onto a truck (Vehicle).

While the Vehicle was owned by a third party, Mainfreight had exclusive use of it and the Vehicle was permanently kept at Mainfreight's depot for its use. The Vehicle was marked with Mainfreight's logo and was at all relevant times under its control and direction.

The dangerous goods loaded onto the Vehicle included:

On 3 November 2011 (Relevant Date), the NSW Police stopped the Vehicle for the purpose of a roadside breath test. After the NSW Police completed their inquiries, Environment Protection Authority (EPA) officers approached the Vehicle to determine the contents of the Vehicle's load and whether or not that load was being transported in compliance with the DG Act.

As a result of that inspection, the EPA charged Mainfreight with an offence under section 9(1) of the DG Act (Offence), which states that:

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.

AGREED FACTS

The prosecutor and Mainfreight agreed it had failed to ensure that the dangerous goods were transported in a safe manner by failing to:

• appropriately placard the vehicle;
• ensure that incompatible dangerous goods were not transported within a placard load;
• ensure the load was appropriately restrained;
• ensure the Vehicle was carrying the prescribed personal protection equipment and fire extinguisher;
• ensure the Vehicle was fitted with an emergency information holder; and
• observe operating procedures and provide adequate training.

These failures caused a risk of harm to the driver, members of the public, emergency services personnel, property and the environment. However, they did not result in any actual harm.

Since the Relevant Date, Mainfreight implemented various measures in an attempt to ensure that the failures did not reoccur. These measures included:

• the appointment of dangerous goods coordinators at all of Mainfreight's branches throughout Australia;
• the requirement for dangerous goods coordinators to complete training units before appointment;
• audits of each branch on an annual basis and the development of a more regular audit program;
• the requirement for a dangerous goods/vehicle checklist before a vehicle leaves a branch with a placard load;
• the conducting of dangerous goods awareness training (induction and refresher courses);
• the development of the dangerous goods content of training courses; and
• enhancements to its computer system for dangerous goods paperwork and manifests.

While Mainfreight had not been prosecuted for a relevant offence before, it had received 16 penalty infringement notices (PIN) under the DG Act and Regulations.

PRELIMINARY SENTENCING CONSIDERATIONS

In determining the appropriate penalty for the Offence, the Court noted that the Offence came to light not as a result of any incident or emergency, but as a result of a random compliance operation. Further, there was no actual environmental harm arising from the Offence.

Conversely, the Offence involved large quantities and a wide range of hazardous and incompatible dangerous goods. While Mainfreight had appropriate policies to deal with the transport of these substances, it failed to observe them adequately, which resulted in a systemic failure.

Because of its status as a "prime contractor" under the legislative and regulatory regime, and the "high degree of control" it had over the operation, Mainfreight bore a significant responsibility for the Offence and any consequences. Mainfreight was more culpable that the owner and driver of the Vehicle, upon whom the Local Court had already imposed fines.

Noting these considerations, the Court undertook the requisite "instinctive synthesis" of the objective seriousness of the Offence and relevant subjective circumstances.

OBJECTIVE SERIOUSNESS OF THE OFFENCE

The Offence was clearly contrary to the promotion of public safety, one of the objects of the DG Act, and therefore was subject to a greater degree of objective seriousness.

Although no actual harm arose from Mainfreight's breach of the DG Act, the increased risk of harm was significant and, as a longstanding dangerous goods transporter, that level of risk was clearly foreseeable by Mainfreight.

As Mainfreight was the prime contractor, the factors giving rise to the Offence were completely within its control and the fact that other actors (the owner and driver of the Vehicle) were also charged in no way diminished Mainfreight's responsibility or culpability for its systemic failure.

The Court said the Offence lay in the moderate range of objective seriousness, having regard to the:

• comprehensive failure to ensure safe transportation;
• numerous breaches of the regulations (despite the prosecution being brought only for the breach of section 9 of the DG Act);
• foreseeability of the risk of harm;
• complete control exercised by Mainfreight; and
• non-observance of Mainfreight's own dangerous goods policies.

SUBJECTIVE CIRCUMSTANCES

Those mitigating factors to be taken into account in sentencing Mainfreight were the lack of substantial harm, Mainfreight's good character, the early guilty plea and assistance provided to the authorities, in both the investigation and prosecution.

Further, the Court noted that Mainfreight had implemented a substantial range of measures to seek to prevent similar incidents occurring in the future.

While the EPA asserted that the 16 PINs previously received by Mainfreight should be treated by the Court as an aggravating factor in sentencing, the Court held that because no background details of those PINS were provided by the prosecutor, the Court could not be satisfied beyond reasonable doubt that Mainfreight had engaged in the alleged conduct nor conclude that Mainfreight held a continuing attitude of disobedience to the law.

However, in determining the overall penalty to be imposed, the Court held that regard should be had to the need for both general and specific deterrence.

PENALTY

In light of the above factors, the Court determined that the appropriate sentence for the Offence was a fine of $80,000 with a discount of 30% for the subjective circumstances of the Offence; a final penalty amount of $56,000.

Mainfreight was also ordered to pay the EPA's costs in the amount of $32,500, as agreed.

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