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Prosecutor wins Tasmanian HVNL overloading appeal

Redpath Haulage sees judge order multiple increase in magistrate’s fine

 

A retiring Tasmanian trucking company owner has had an overloading fine increased more than four-fold on appeal under a Heavy Vehicle National Law (HVNL) prosecution.

The state supreme court case stems from an incident in 2016 when a Redpath Haulage tandem axle pig trailer towed by a three-axle rigid loaded with potatoes was found to have exceeded the mass requirement of 15 tonne by 3.8 tonne.

The magistrate imposed what he accepted was a light penalty of $850, plus court costs of $82.15.

“I note the plea of guilty to the charge contrary to the heavy vehicle national law requirements,” the magistrate stated at the time.

“In all the circumstances it seems to me that the company is responsible for all of the requirements set out by the legislation but I do accept that it is a difficult matter for the director of the company to ensure compliance with given the loading of the vehicle at the paddock and the transportation of the goods to the processor.

“As Mr [Robert] Redpath says, the situation is one where he is entirely reliant upon the person loading the vehicle and the driver of the vehicle itself to ensure that there is compliance with the legislation. Here there has been quite a significant overloading of the vehicle, some – slightly more than twenty five – or is it a hundred and twenty five percent of the maximum permissible load.

“In that regard I do have to take into consideration the appreciable risk of harm to others – other persons or the environment, not so much the environment I would have thought given that the load was potatoes, but there is of course the risk of a roll – over in cases where a trailer has been loaded over the requirements, so it is required by the legislation to be treated as a severe risk.

“However I note all of the circumstances, the plea of guilty at an early opportunity and the expense that the company has already been put to with regards to the unloading and redistribution of the load.

“In those circumstances I’m going to deal with the matter by way of the imposition of a lenient fine, particularly given that Mr Redpath has advised that his operations have been significantly curtailed by his recent retirement, so I expect there’s going to be little chance of this occurring again.”


 Find details of a huge overloading fine in NSW here


But the state’s Director of Public Prosecutions (DPP) appealed successfully, raising amongst other things the issue of unfair commercial advantage which was accepted “in a general sense” and is mentioned in the HVNL.

In rejecting the earlier approach, the judge notes the magistrate ignored the fact that the respondent had no system in place to ensure compliance, recording only the fact that Redpath was reliant upon the person loading the vehicle.

“The respondent cannot delegate its legal responsibility, and the difficulty encountered by reason of its failure in that respect is not material to sentencing,” the judge states in his findings.

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”, and that Redpath had three relevant prior infringements involving similar circumstances.

“Personal deterrence was an important factor in sentencing, and the sentence which was imposed failed to reflect that,” the judge finds.

He adds that while the distance travelled was relatively short, that was only because the vehicle was stopped. The planned journey had been around 40km.

He goes on to underline the proportion of the earlier fine in light of the legislative purpose of the HVNL, which had also gone unmentioned.

“That is an important sentencing consideration which underscores the need for general deterrence. In the context of the statutory maximum, the quantum of the fine which was imposed represents less than 2 per cent of the maximum penalty for the offence.

“The Court notes that the offence is in the most serious category of breaches under the Act, and that the vehicle exceeded the allowable maximum by almost four tonnes, representing 125.3% of the allowable mass for the trailer.

“As the appellant submitted, the mass requirement was exceeded by almost the weight of another heavy vehicle, defined in the HVNL to include vehicles with a gross vehicle mass of 4.5 tonnes and over.”

During the case, the DPP referred to Tasmanian Sentencing Advisory Council records which identified two other sentences for breach of s 96(1) of the HVNL by bodies corporate, at $4,000 or more.

In his review of Redpath Haulage’s financial circumstances for resentencing purposes, the judge was told that the company is not profitable.

In 2016, it suffered a financial loss of about $4,000, and the loss to June 30, 2018 is around $6,000.

 

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