OHS Alert-Scheduler sentenced for recklessness after four deaths

Article from OHS Alert (8/3/24)

Scheduler sentenced for recklessness after four deaths

A workplace supervisor has been sentenced for recklessly allowing a drug-affected truck driver to drive and kill four police officers, but cleared of allegations he would have known the driver was in an unfit state just by looking at him. He was originally charged with four counts of manslaughter.

Victorian Supreme Court Justice James Elliott found that in the hours before truck driver Mohinder Singh embarked on his deadly journey, the supervisor, Simiona (Simon) Tuteru, received a text message from an experienced colleague raising concerns about Singh's physical and mental state and saying, "I don't think he should be driving".

As a result of this text message, Tuteru was "plainly on notice that there were issues concerning Singh's fitness to drive and that those issues needed to be addressed", he said.

Tuteru pleaded guilty to breaching section 26F ("Category 1 offence") of Victoria's version of the Heavy Vehicle National Law, in engaging in conduct (allowing Singh to drive) related to his duty as a scheduler in the the chain of responsibility for a heavy vehicle that exposed individuals to the risk of death or serious injury, and being reckless as to the risk.

Justice Elliot convicted and ordered Tuteru to perform 200 hours of unpaid community work across three years.

He noted that while Tuteru faced maximum penalties of $300,000 and five years' jail under section 26F, he had already "suffered considerable financial consequences" from his offending, and the prosecution accepted that a non-custodial sentence was appropriate.

The national operations manager of Tuteru's employer, Connect Logistics Pty Ltd (now defunct), was less fortunate, recently being jailed for three years, with a non-parole period of 12 months, for recklessly failing to ensure proper fatigue management systems and other safety procedures were in place in the months leading up to the quadruple fatality (see related article).

Last year, Connect Logistics was handed a record-high HVNL penalty of $2.31 million, also for recklessness relating to the deaths (see related article).

In the afternoon of 22 April 2020, Singh left Connect Logistics' Lyndhurst, Victoria depot in a 20-tonne truck while affected by drugs, including methylamphetamine, and a lack of sleep.

While driving along the Eastern Freeway, he fell asleep at the wheel and veered into an emergency lane, colliding with two police cars involved in a traffic stop and killing Victoria Police Constable Glen Humphris, Senior Constable Kevin King, Constable Joshua Prestney and Leading Senior Constable Lynette Taylor.

Several months later, Tuteru was arrested and charged with four counts of manslaughter, as well as multiple contraventions of the HVNL.

Connect Logistics and several executives including the national operations manager were accused of a range of HVNL breaches, while Singh was charged with and pleaded guilty of culpable driving causing four deaths, as well as trafficking illicit substances, and eventually jailed for at least 14 years and six months.

Meanwhile, the case against Tuteru dragged on for two years, before the Victorian Director of Public Prosecutions withdrew the manslaughter charges and elected to pursue a single charge under section 26F of the HVNL.

In March last year, Tuteru successfully applied to the Supreme Court to permanently stay the charge, but the Court of Appeal overturned the ruling, allowing the prosecution to proceed (see related article).

In sentencing Tuteru, now 52, Justice Elliot noted his role at the Lyndhurst depot involved managing and scheduling drivers for fatigue-regulated heavy vehicles, conducting fitness-to-drive assessments, and taking steps like re-allocating duties when a driver did not appear to be fit for duty.

He heard the colleague who texted Tuteru encountered Singh during the morning of the incident and thought he appeared to be confused.

The colleague warned Tuteru that he was concerned about Singh's "mental state", that Singh had attempted to park his truck in the wrong docks at customer sites during his previous shift, and that Singh had needed to stop his vehicle to sleep during that shift.

"I don't think he should be driving, I told him to go to doctors (sic) straight away," the text message said.

Several hours later, Singh attended the Lyndhurst depot and told Tuteru that he believed he, Singh, had been cursed by a witch.

Tuteru, who was known for his religious beliefs, placed his hand on Singh's head and said, "In Jesus' name, I cast a spell out of you."

After this, it was agreed that Singh would perform a three-hour driving job and then return to the depot for Tuteru to assess his ability to continue performing his shift, but the police officers were killed during the three-hour job.

Justice Elliot found Tuteru had been "alive to the possibility that Singh may not be fit to drive", should have known there were issues around Singh's fitness to drive that needed to be addressed, and his decision to allow Singh to drive had "horrific consequences".

However, he rejected the prosecution's contention that it would have been obvious to Tuteru that Singh was not fit to drive upon seeing him when he turned up to the depot.

These and other allegations stemmed from Singh's post-incident claims that he attended the depot in an obviously poor physical state, and that he did not intend to work but was pressured by Tuteru to do so, the Justice noted.

He found Singh was an unreliable witness attempting to lessen his blame and responsibility, meaning his evidence on these issues could not be accepted.

Justice Elliot added that in early 2023, the HVNL case against Tuteru changed from alleging he recklessly allowed Singh to drive in an unfit state when knew there was a probability of a danger of serious injury or death, to alleging he knew there was a possibility of such an outcome.

This was a "far less serious allegation", he said.

He also observed that on the facts presented to the Court, the original manslaughter charges "simply could not have been made out".

Director of Public Prosecutions v Tuteru (No 4) [2024] VSC 80 (6 March 2024)