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  • Unreported Judgment

Thomasson v Melshay Pty Ltd

 

[2020] QMC 8

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

Thomasson v Melshay Pty Ltd & Anor [2020] QMC 8

PARTIES:

Craig THOMASSON (Department of Agriculture and Fisheries)

(Complainant)

v

MELSHAY PTY LTD

(First Defendant)

&

Claire Louise STRASBURG

(Second Defendant)

FILE NO/S:

Mag-00169349/19(3)

DIVISION:

Magistrates Courts

PROCEEDING:

Sentencing Hearing

ORIGINATING COURT:

Dalby Magistrates Court

DELIVERED ON:

14 May 2020

DELIVERED AT:

Dalby Magistrates Court

HEARING DATE:

11 March 2020

MAGISTRATE:

T. E. Mossop

ORDER:

 

CATCHWORDS:

 

SOLICITORS:

M. Nicholson of Counsel i/b In-House Legal for DAF, Qld Government

Solicitor A. Hohn of CLO Lawyers for First Defendant

Cattle, Ticks, Transportation and Zones

  1. [1]
    A livestock carrier company and their employed female driver transported at least 100 head of tick-infested cattle through a cattle tick-free zone over some 3 days and nights in September 2018.
  1. [2]
    During that particular trip, three tick-infested cattle escaped from the prime mover when it was parked within the tick free zone. This occurred when the driver had pulled over and opened the side gate of the truck for the purpose of entering to sort out fallen cattle.
  1. [3]
    In September 2019, both the carrier company, Melshay Pty Ltd and the driver, Ms Strasburg, were each issued with a complaint and summons that alleged those two particular actions in September 2018 constituted a breach of obligations imposed by section 23(2) and (3)(a) of the Biosecurity Act 2014. The two breaches alleged against each party, identical in nature for each, form the two simpliciter offences contained in each complaint.[1]
  1. [4]
    On 11 March 2020 both the defendants each pleaded guilty to their two charges.
  1. [5]
    Counsel for the prosecution, Mr Nicolson, informed the court that this is the first such prosecution in Queensland under this particular legislation.
  1. [6]
    Sentencing submissions were made by Counsel for the prosecuting authority and by the solicitor for the First Defendant Company, Melshay Pty Ltd. The Second Defendant, Claire Strasburg, was self-represented. She appeared by telephone and provided a brief statement to the court on her own behalf expressing remorse for her actions.

Two Biosecurity Act 2014 Obligations Breached

  1. [7]
    The Biosecurity Act imposes obligations to minimise biosecurity risks.[2]
  1. [8]
    The obligation set by s 23(2) is that: “The person has an obligation (a general biosecurity obligation) to take all reasonable and practical measures to prevent and minimise the biosecurity risk.”
  1. [9]
    The obligation set by s23(3)(a) is that: “Also, the person has an obligation (also a general biosecurity obligation) to prevent or minimise adverse effects on a biosecurity consideration of the person’s dealing with the biosecurity matter or carrier or carrying out the activity”.

Form of the Complaint

  1. [10]
    In the Complaint against Melshay Pty Ltd, the first charges set out as follows:-

The Complaint of Craig Allan Thomasson of the Department of Agriculture of Fisheries, Dalby, Queensland a public officer within the meaning of section 142A of the Justices Act 1886, made this fourth day of September 2019, before the undersigned, a Justice of the Peace for the said State, who says that:

“Between the fifth day of September, 2018 and the ninth day of September, 2018, in the course of a journey by vehicle from Nebo, Queensland to Silverdale, Queensland, during which the vehicle passed through the Dalby Magistrates Court District, MELSHAY PTY LTD (ACN:010936866), through its employee Claire STRASBURG, is taken, pursuant to section 359(3) of the Biosecurity Act 2014 to have been a person on whom a general biosecurity obligation was imposed under section 23(2) of the Biosecurity Act 2014 and is taken to have failed to comply with its obligation, contrary to section 24 of the Biosecurity Act 2014”.

  1. [11]
    The second charge against Melshay differed only by referring to a breach of the obligation imposed by section 23(3)(a).
  1. [12]
    The two charges against Ms Strasburg were almost identical in nature to those brought against Melshay.
  1. [13]
    Particulars set out the relevant biosecurity obligation and the facts said to comprise the failure to discharge obligations. Included for Melshay were particulars addressing their responsibility for acts and omissions of Ms Strasburg as their employee.

Transportation and Escape of the Tick Infested Cattle

  1. [14]
    Queensland is divided into two zones in relation to cattle. There is a tick-infested zone which runs along the eastern corridor of Queensland and a cattle tick-free zone which is primarily inland, and more towards western Queensland.
  1. [15]
    Melshay had been contracted by another company to transport cattle from Blenheim Station, Nebo (about 100 kilometres west of Mackay) to Sale Yards in Silverdale (about 60 kilometres south-west of Brisbane). Both Nebo and Silverdale are situated and connected within the tick-infested zone.
  1. [16]
    Ms Strasburg was the driver allocated by the livestock carrier Melshay to carry out the approximate 1043 kilometre/15½ hour journey.
  1. [17]
    On 6 September 2018, Ms Strasburg initially transported the cattle from Blenheim Station in Nebo to the Nebo Sale Yards (about 100 kilometres south-south-east). This was all within the tick infested zone. The cattle were not branded or tagged but were “scrubbers”, namely wild with limited exposure to human interaction.
  1. [18]
    The next day the cattle were branded and tagged at the Nebo Sale Yards. It was known to Ms Strasburg, and observed at the sale yard, that the cattle were infested with cattle tick.
  1. [19]
    Despite the sale yards being equipped with cattle dipping facilities, at least 100 head of tick-infested cattle were loaded on to the three trailer, double-deck road train driven by Ms Strasburg.
  1. [20]
    At 5.30pm on 7 September 2018, Ms Strasburg departed the Nebo Sale Yards. Whilst there was a route available to travel entirely within the tick-infested zone, the complicating issue was because Ms Strasburg was driving a prime mover with three trailers, she could not travel that route. This factor was identified by both Prosecuting Counsel and by myself as an aggravating factor of the offending. It would have been very apparent to both defendants that these tick-infested cattle being loaded onto that particular prime-mover with three trailers could only reach the intended end location by travelling through the tick-free zone.
  1. [21]
    By travelling along the Leichhardt and Warrego Highways, as opposed to other routes within the tick-infested zone which included the Burnett or Bruce Highways, Ms Strasburg entered the cattle tick-free zone. She later admitted her complete awareness of this to inspectors.
  1. [22]
    During this unwise and ill-fated journey, Ms Strasburg stopped the road train at three separate locations to address the issue of cattle being down and not standing. This is an issue which puts the cattle at risk of injury or death. This is relevant to mention because it explains why Ms Strasburg, on a fourth occasion stopped yet again to address the issue of fallen cattle. It is also why she decided at that time to enter the middle trailer. Unfortunately, she was then some 150 kilometres inside the cattle tick-free zone.
  1. [23]
    About 3.55am on the 8th September 2018 Ms Strasburg opened the door or gate to that middle trailer. She was almost immediately knocked to the ground by cattle and three head of cattle escaped. Some 20 to 30 seconds then passed before she could regather herself and close the trailer door to secure the rest of the cattle.
  1. [24]
    Ms Strasburg contacted her manager at about 4.00am to tell him what had happened. She suggested unloading in Chinchilla but was told she couldn’t. She kept driving and tried but failed to make contact with the person who had contracted the transportation. She reached Charlton, just prior to Toowoomba, where another sub-contractor transporter met up with her. He took her rear trailer of cattle for the final stage of the journey and she continued on with her rig now consisting of the remaining two trailers.
  1. [25]
    The cattle tick infested zone was re-entered past Toowoomba.
  1. [26]
    Upon arrival at the Silverdale yards at about midday, a Biosecurity inspector saw that the cattle transported by Ms Strasburg had between 100 to 200 ticks per side on each animal. This was considered to be a heavy infestation of live ticks.

Location of Three Tick-Infested Cattle and Relevant Implications

  1. [27]
    All three tick-infested cattle that had escaped were eventually located by the owner of a 1420 acre grazing property, wholly within the tick-free zone.
  1. [28]
    That grazier was actually in Rockhampton at the time of the disastrous escape. An officer of the Department of Agriculture and Fisheries finally made contact with him on 11September 2018, after a failed attempt the day before.  That grazier said he was not able to return to his property until the 13 September 2018.
  1. [29]
    When that grazier arrived home on 13 September, he immediately searched for the three cattle and found two of them within half an hour. After discussing what to do with a DAF officer, they were taken to Taroom dip yard.
  1. [30]
    Come 14September when DAF officers attended Taroom dip yards, these two head of cattle were seen to have 10 to 15 ticks each side with those ticks aged between 8 and 21 days old.
  1. [31]
    On 15 September, the third head of cattle, a heifer, was located and shot. It was seen to be crawling with cattle tick. Some were taken safely as samples and the carcass was then burned.
  1. [32]
    The benefits of having a grazing property in the tick-free zone is unsurprising. It means less work, less restrictions, less chemicals used, less stress (for both grazier and animal) and greater production.
  1. [33]
    This incident of the introduction of tick-infested cattle into a tick-free zone caused the affected grazing property landholders significant loss in time and money, with associated stresses and additional work-loads.
  1. [34]
    After the three cattle escapees were located and dealt with, three grazing properties were declared as infested by DAF and placed on the Biosecurity Register. Eradication measures were put in place. Those measures included the identified, affected landholders having to undertake treatment programs with natural implications on the movement of their stock.
  1. [35]
    Financial compensation for eradication costs, paid by the first defendant to affected landholders, totalled $16,082.56. Most of that, if not all, was paid before 12 July 2019. This was important because it demonstrated a willingness of the company to assist and promptly resolve the issues the incident in question had caused.
  1. [36]
    In considering the impact upon Melshay in paying that compensation amount it is noted the invoice paid for the relevant cattle transportation totalled $15,957.90.
  1. [37]
    On 18 and 19 June 2019 the three affected properties were finally removed from the Biosecurity Register. The duration of adverse impact therefore did stretch into some 9 months, a relatively protracted period.

What should have been done to avoid Breaches

  1. [38]
    It is really self-evident that the cattle should not have been moved from the infested zone into the free zone.
  1. [39]
    Alternatively, the cattle should have been treated and been the subject of a clean inspection before such a journey. Regardless of who was obligated to attend to such treatment, protocols and procedures should have been in place for dealing with tick-infested stock. The transport company had none and the driver, whilst aware of two zones in Queensland and the Biosecurity requirements with respect to those two zones, totally disregarded her obligations.

Other Relevant Sentencing Considerations

  1. [40]
    Queensland’s legislated sentencing principles pursuant to section 9(2) Penalties & Sentences Act 1992 apply.
  1. [41]
    The nature of the offence, the extent of each offenders’ culpability and the damage caused is set out in the facts of the offending.

Co-operation & Admissions[3]

  1. [42]
    Both defendants, the first defendant through its sole director Lester Strasburg, co-operated and participated in interviews with DAF investigators.
  1. [43]
    Mr Strasburg confirmed that stock should not be moved without paperwork nor should be moved from the infested zone to the free zone.

Lack of Protocols & Procedures[4]

  1. [44]
    Evident from Mr Lester Strasburg’s interview was that whilst there seemed to be irregular “toolbox” meetings with staff every 2 to 3 months, the company had no written protocols for emergencies nor procedures set for transportation of cattle in the tick-free zone.
  1. [45]
    At the time Mr Strasburg as the sole director of Melshay employed some 9 drivers, which included his daughter Claire (the second defendant). Whilst the drivers were responsible for loading stock, they had correct licenses and were trained under his instruction.

Lack of any Prior History of Breaches[5]

  1. [46]
    The Defendant Company had been operating since 1974 with between 200 to 300 thousand head of cattle moved per year without any prior breaches.
  1. [47]
    At the time of sentence, the Company remained in operation with some 20 employed drivers.

Submissions on Penalty

  1. [48]
    Liability for these simpliciter offences is 500 penalty units[6] each, however for a company that increases to 2500 penalty units[7].
  1. [49]
    With the relevant penalty unit at the time being $130.55, the maximum penalties applicable are $65,275 for an individual and $326,375 for a company, per each charge.
  1. [50]
    Counsel for the Prosecution:-
  1. (a)
    referred to need for both general and specific deterrence;
  1. (b)
    The impact on properties where the cattle escaped;
  1. (c)
    remained silent as to the recording of convictions;
  1. (d)
    Acknowledged in mitigation the pleas of guilty, lack of previous breaches, full admissions, demonstrated remorse (including by the payment of compensation).
  1. (e)
    submitted for the imposition of fines, expressed as roughly being about 5% of the maximum
  1. [51]
    Global fines for the two offences were sought by prosecuting counsel. $30,000 was sought from the Defendant Company and $6,000 from the individual defendant.
  1. [52]
    The solicitor for the defendant company proposed a fine of $10,000. She relied upon the amount of restitution promptly paid by the defendant company, pointing out those costs exceeded payment received for the transportation of the cattle. Her unchallenged submission was the affected property owners did not have to expend money themselves. The extensiveness of the company’s trading history without any prior breaches was another important factor raised.
  1. [53]
    As this is the first such prosecution in Queensland under this legislation, two sentencing proceedings relating to the movement of cattle under other Acts was provided by the prosecution.

Black Diamond Beef Sentence

  1. [54]
    The first in time of these previous sentences was one of Magistrate Thacker on 8 June 2010 in relation to a breach of the Stock Act 1915, section 11. The defendants were two individuals, Black Diamond Beef Company (the agent for the sale of the cattle) and a New South Wales Pastoral Company selling the cattle.
  1. [55]
    The sentence was imposed for a serious breach involving cattle infected with Bovine Johne’s Disease being introduced into Queensland from a controlled area in New South Wales via two consecutive consignments within the one transaction, without health certificates or waybills.
  1. [56]
    No damage was caused by the failure of the offenders. I therefore note that the actual damage caused in the present case before me is therefore an aggravating feature.
  1. [57]
    General deterrence was called for such a situation that had potential for adverse consequences. The prosecution sought fines that sat between 2.5% and 3.5% of the maximum penalty. For an individual the fine sought was one between $8000 and $10,000.
  1. [58]
    Her Honour also had some assistance from a comparative case table of sentences. She imposed fines of $1000 and $3000 on the two respective individual defendants. The Pastoral Company was fined $10,000. The agent for the sale and transportation of the cattle, Black Diamond Beef, were fined $50,000 (the same penalty issued to the Queensland Purchaser). No convictions were recorded in the absence of any prior history of offending.

Geoffjoy Enterprises Pty Ltd Comparative Sentence

  1. [59]
    The second sentence offered up as providing some assistance was one imposed by Charleville Magistrates Court on 27 August 2013. The company was fined $65,000 and two individuals fined $20,000 and $2,000 respectively. No Convictions were recorded.
  1. [60]
    The prosecutions were brought under section 11 and 22C of the Stock Act 1915.
  1. [61]
    This case also involved introducing cattle from Victoria into Queensland without health certificates or waybills. Whilst none of the cattle were infected with Bovine Johne’s disease upon testing, without such clearance certificates their introduction into Queensland not permitted under the Stock Act requirements. Obviously, the legislation imposed obligations to prevent the introduction of such a disease, which would significantly impact the Queensland cattle industry in an adverse way.
  1. [62]
    That case involved four consignments, two in May and one each in June and September, all in 2012. 484 head of cattle had been transported in total. These actions came under scrutiny as a result of observations that raised concern that the cattle in question were presenting as if suffering from Bovine Johne’s disease. Fortunately, none of the cattle subsequently tested were found to have that disease. The process to resolve this took some months. The individual fined $20,000 was totally uncooperative in his dealings with inspectors during that time.

Factors Relevant to Sentencing

  1. [63]
    I have considered sentencing principles set out in section 9 of the Penalties and Sentences Act (Qld). I have had specific regard to general and personal deterrence, the impact on victims, remorse, payment of compensation and the totality of the offending (being that the 2 breaches were in proximity and part of the one continuing action). I have had regard to the two sentences provided by way of assistance.
  1. [64]
    Aggravating features for this matter are:-
  1. (a)
    the clear and obvious risk evident to the second defendant when she first collected that particular load of cattle;
  1. (b)
    the lack of appropriate risk mitigation processes by the first defendant or steps taken by the second defendant when faced with such a risk.
  1. (c)
    the limited insight by the second defendant as to her responsibilities and obligations.  In an address to the court, at sentence, Ms Strasburg said “it is not up to us to have the cattle dipped”. She is of course correct but such a statement does little to address the real issue, that she had consciously chosen to do and has then done wrong, when she proceeded to load the infested cattle and transport them as she did. I would hope she is now far more discerning as to her obligations as a driver charged with transporting cattle.
  1. (d)
    the fact the only viable route of travel for the particular prime-mover used had to be through the tick-free zone.  This demonstrates that both the defendants were deliberate in their actions in loading and transporting tick-infested cattle for an intended journey through the tick-free zone;
  1. (e)
    for the first alleged breach, both defendants acted with self-interested purpose and complete disregard to the significant jeopardy their actions imposed upon innocent third parties and the greater Queensland cattle industry. The first breaches cannot be said to be actions of ignorance or negligence but were rather deliberate, conscious actions.
  1. (f)
    it is accepted the second breach stems from a poor decision made by Ms Strasburg under the difficult circumstances of trying to address the recurrent problem of fallen cattle. But this action, in the context of the decision to place herself with tick-infested cattle within the tick-free zone proved dangerous. It went further to demonstrating the very real risk that load of infested cattle posed to the Queensland cattle industry and the actual risk it imposed on proximate graziers.
  1. (g)
    the significant harm and detriment caused to three innocent graziers in the conduct of their livelihood.  The impact on those victims was multi-faceted adversely affecting finances, workloads, stress levels and for a period of some protraction.
  1. [65]
    In mitigation:-
  1. (a)
    Both defendants co-operated with authorities and made admissions;
  1. (b)
    compensation was promptly paid well before sentence;
  1. (c)
    guilty pleas were entered;
  1. (d)
    remorse was evident by all of actions a, b and c above, as well as by expressions of remorse offered up in the course of the sentence proceeding from both defendants;
  1. (e)
    neither defendant had any prior breach history or relevant offending history.
  1. [66]
    There is no doubt the facts surrounding this matter carried the potential for greater adverse impacts upon the Queensland cattle industry. Actual harm was also caused in the commission of these breaches. That actual harm to innocent third parties is also a distinguishing feature from the two Stock Act sentences provided by the prosecution.
  1. [67]
    Unfortunately, I have been not been assisted by either defendant as to their financial circumstances despite the submissions from both parties seeking the imposition of a fine.
  1. [68]
    I have been informed the first defendant is a company in operation since 1974 moving 200 to 300 thousand head of cattle per year, employing 20 drivers.
  1. [69]
    If this one load of 100 head was invoiced for $15,957.90 then projections as to Melshay’s annual income before expenses reveals a company with a significant financial turnover before expenses.
  1. [70]
    The second defendant remains an employed driver of the first defendant.
  1. [71]
    I conclude from the limited information I have been provided and from the submissions from the defendants that both have the capacity to pay the fines sought by the prosecution. There is nothing before me to the contrary. Melshay is still operating and Ms Strasburg is still employed.
  1. [72]
    I note that one of the previous cases referred to by prosecuting counsel referred to a calculation of fines as between 2.5 and 3.5% versus the prosecutor submitting for “roughly about five percent”. I have not employed any such strict mathematical calculation (also being mindful of Court of Appeal comments guarding against such calculations for penalties) but in arriving at the penalties I ultimately did, it is worth noting that the fines that I will now impose fall within those ranges.

Decision

  1. [73]
    The defendants are convicted by their pleas. The First Defendant Melshay Pty Ltd is fined one penalty for the two breaches of $25,000.
  1. [74]
    But for the prompt payment of compensation to affected landholders, the fine imposed would have been closer to the prosecutions submission. I regard the payment of compensation well before sentence, in circumstances that seem to have prevented any adverse financial implication upon any of the victims, as a mitigating factor that warrants a reduction of the fine sought by the prosecution. Such conduct by defendants must be appropriately recognised and be encouraged.
  1. [75]
    The Second Defendant Ms Strasburg is fined the one penalty for her two breaches of $5000.
  1. [76]
    No convictions are recorded against either defendant.
  1. [77]
    Each defendant is ordered to pay prosecution court costs for their matter being $97.95 each.
  1. [78]
    The first defendant will be given 12 months to pay from the date of sentence, in accordance with his legal representative’s request as consented to by the prosecution. For the second defendant, the fine and court costs will be referred to the State Penalties Enforcement Registry (SPER) for registration and collection

Footnotes

[1] Pursuant to section 24 of the Biosecurity Act 2014

[2] Sections 4 & 5

[3] s 9(2)(f) Penalties & Sentences Act 1992

[4] s 9(2)(b) Penalties & Sentences Act 1992

[5] s 9(2)(d) Penalties & Sentences Act 1992

[6] Under section 24 (b)(iii)

[7] Section 181B Penalties and Sentences Act 1992

Close

Editorial Notes

  • Published Case Name:

    Thomasson v Melshay Pty Ltd & Anor

  • Shortened Case Name:

    Thomasson v Melshay Pty Ltd

  • MNC:

    [2020] QMC 8

  • Court:

    QMC

  • Judge(s):

    Magistrate Mossop

  • Date:

    14 May 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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