RMS compliance chief Paul Endycott points out different punishments for truck drivers versus operators and customers.
The prosecution of South Penrith Sand and Soil highlights the differing treatment truck drivers and those higher up the chain receive, the head of heavy vehicle compliance in New South Wales says.
Paul Endycott and his team at Roads and Maritime Services (RMS) prosecuted the Sydney truck and dog company, which no longer exists, for chain of responsibility (COR) offences after a fatal accident in 2010.
As Owner//Driver reported, a truck driver working for the company struck and killed a cyclist and was sentenced to 10 years jail as a result.
The driver was suffering from fatigue and had cannabis in his system at the time of the crash.
The RMS investigation into South Penrith Sand and Soil revealed the company pushed its drivers to exceed legal work hours and tried to conceal the practice.
While the driver was jailed, the company and its director were fined less than $90,000 in the NSW Supreme Court.
“The South Penrith Sand and Soil case shows the contrast between long jail sentences for drivers at fault in fatal crashes, and consequences for the operators and customers involved,” Endycott, who is the RMS general manager of heavy vehicle compliance, says.
Endycott says the current complex and prescriptive COR law led to the light penalty against the company and its owner.
“There were thousands of fatigue breaches,” he says.
“We interviewed all the drivers and protected them under the law by directing them to answer questions.
“I asked for the worst of the breaches to be progressed after the company appealed to the District Court saying a number of charges were duplicitous.
“The complexity of the law led to this situation. If we had been able to charge them once, under a breach of a general duty to provide safety and include the thousands of incidents in the particulars of the charge, then the court could look at one charge and appropriately deliver a suitable sentence in response.
“But what they have to do is look at each incident and then deal with them in totality.
“Judges and magistrates are compelled to get bogged down in the fine detail, and can lose sight of the overall seriousness of the dangerous company behaviour. Things are just back to front.”
Endycott says his investigators hear time and again from those higher in the chain that they did not know drivers were speeding or suffering from fatigue. But he adds that in most cases it is because “they never bothered to ensure basic compliance”.
“We must continue with this work to ensure companies are not attempting to gain a criminal commercial advantage over compliant companies by breaking the law,” Endycott says.
The judge who ruled on the South Penrith Sand and Soil case pointed out that none of the charges before him directly related to the fatal accident, but the accident led to an RMS investigation.
“It was immediately apparent to the RMS Audit, and South Penrith and the other defendants agreed, that there were no systems or practices in place which addressed any issue relating to fatigue management for the drivers of the Company’s vehicles,” the judge’s ruling states.
Elsewhere the judge noted that until an earlier court case where half the charges were thrown out, “the prosecution persisted, unreasonably in my assessment, in pursuing a range of charges which were not open to it”.
And although he was passing sentence on a host of individual road safety offences, he said he was obliged to adhere to the “principle of totality”, to ensure that the fines “reflect the criminality involved”.
You can read more about the South Penrith Sand and Soil case in the June issue of Owner//Driver.
Photography: Steve Skinner