42k mass loading breach fine 'manifestly excessive'

Trucking operator wins appeal to have $42,000 loading breach fine overturned

42k mass loading breach fine 'manifestly excessive'
42k mass loading breach fine 'manifestly excessive'
By Brad Gardner

A trucking operator has won its bid to have a $42,000 fine for a loading mass breach overturned because the original sentence was "manifestly excessive".

The Supreme Court of South Australia this month reversed a decision to fine NSW-based telecommunications and transport provider Jonesy’s Pipe and Cable for exceeding the State’s load limit by 19.22 tonnes. The driver was transporting a bulldozer on a semi-trailer.

But despite the excess weight amounting to 145 percent over the acceptable limit, the Supreme Court ruled too much attention was placed on the load rather than its impact on the environment.

In the original matter, the Ceduna Magistrates Court in December last year found the almost extra 20 tonnes constituted a severe risk breach, which can amount a maximum fine of $82,500.

Under the State’s Road Transport Compliance and Enforcement Act, breaches are classified into three categories—minor, substantial and severe.

But in referring to the Act’s definition of severe risk, Justice Patricia Kelly argued "greater weight" should have been given to the load’s impact on infrastructure, congestion and public amenities and whether it amounted to an unfair commercial advantage.

Kelly says the prosecution did not prove the offender’s actions had a detrimental impact on the surrounding environment, prompting her to question the magistrate’s decision.

"The requirement that regard be had to an appreciable risk of harm to public safety or the environment is exclusive to sentencing for a severe risk breach under that section," Kelly says.

"In my respectful view the sentence is manifestly excessive and accordingly I propose to re-sentence the appellant."

The company had the fine reduced to $10,000 and was also required to pay a $70 levy. However, the $5,500 fine given to the company driver who pleaded guilty remained.

Jonesy's also did not argue againist the $800 fine and conviction for exceeding the vehicle's permitted statutory length limit of 19 metres by 3.3 metres.

The incident stemmed from the company’s failure to hold a current permit applicable to the load the driver was transporting.

On August 23 last year, inspectors checked the permit and found it did not relate to the configuration and had expired on June 1, 2008.

However, Kelly says there is no evidence Jonesy’s "deliberately flouted the regulations or that the company or its drivers are repeat offenders".

"The appellant pleaded guilty at the first opportunity," Kelly says.

Because the expired permit allowed the company to carry heavier loads on a different truck-trailer configuration, the company thought it would be covered by carrying the permit for smaller loads.

. Mass loading laws are part of national chain of responsibility provisions passed last year. The laws require all parties in the supply chain to take reasonable steps to ensure breaches do not occur.

Since they took effect last year, the NSW Government has brought actions against prominent companies such as Fletcher International Exports and Mannway Logistics.

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