Department of Transport and Main Roads v Williams

[2016] QDC 309

[2016] QDC 309

DISTRICT COURT OF QUEENSLAND

APPELLATE JURISDICTION

JUDGE HARRISON

Appeal No 190 of 2015

DEPARTMENT OF TRANSPORT
AND MAIN ROADS  Appellant

and

RICHARD LESLIE WILLIAMS  Respondent

CAIRNS

3.28 PM, THURSDAY, 7 APRIL 2016

JUDGMENT

.

HIS HONOUR:   On the 29^th of October 2015, the respondent, Richard Leslie Williams, pleaded guilty in the Magistrates Court at Cairns to five charges pursuant to the Transport Operations (Marine Pollution) Act 1995.

He was originally charged on complaint – general purposes, made and summons – with seven charges;  but when the matters came before the Magistrate, “no evidence” was offered in relation to charges 2 and 3. 

The charges which are relevant for the purposes of this appeal are charges 1, 6 and 7.  Charge 1 alleges that on the 28^th day of June 2013 on the waters off Horn Island in the Thursday Island Magistrates Court district, he contravened an order made by the Court, contrary to section 127(5) of the Transport Operations (Marine Pollution) Act 1995. Charge number 6 and charge number 7 are similarly worded: they differ only in particulars. The wording in each case is that on the 20^th day of May 2015 on the waters off Horn Island in the Thursday Island Magistrates Court, he being the owner of a ship to whom a notice had been given pursuant to section 86A(2)(a) of the Act did not comply with the requirements stated in the notice, contrary to section 86A(4) of the said Act.  Particulars were provided in relation to all three charges, and I will deal with them later.

He was also dealt with for charges 4 and 5, which relate to insurance and registration of a vessel.  For reasons that were apparent on the record, he was convicted but not further punished in relation to those matters, and they are not relevant for the purposes of this appeal.

In relation to charges numbered 1, 6 and 7, the Magistrate imposed one penalty, namely a fine of $500. The appellant now appeals that sentence pursuant to section 222 of the Justices Act 1886. Under the legislation, matters such as this are effectively conducted as a re-hearing on the evidence before the learned Magistrate. There was no application for the inclusion of any further evidence in this case. It is well accepted that this Court should only interfere if the applicant can demonstrate that there has been legal, factual or discretionary error on the part of the learned Magistrate.

Essentially the appeal relates to the penalty imposed for charge number 1. The grounds of the appeal as set out in the notice of appeal are as follows: (1) the Magistrate erred by failing to consider imposing a penalty other than a fine for the breach of section 127(5) of the Act; and (2) that the sentence imposed was manifestly inadequate in all of the circumstances.

It is worthwhile considering the history of the matter.  The history was summarised by the Prosecutor who appeared before the Magistrate.  I note that the respondent appeared self-represented before the Magistrate, and also appeared self-represented before me today, on the hearing of this appeal. 

The facts relied upon are set out in pages 7 to 11 of the transcript;  and I will summarise those briefly.  They relate to the vessel which is described in the

complaint as Sattha Uniana, which was described as a 32-metre steel cargo ship.  It was alleged that it was moored in Cairns for a period of four years prior to being purchased by the defendant in March of 2009. 

There was a large amount of restoration work done to it by an accredited marine surveyor to make it seaworthy to travel to Papua New Guinea, and sea trials were necessary to test its seaworthiness.  The respondent obtained a single-voyage permit from Maritime Safety Queensland.  He obtained insurance for the ship, to comply with the requirements of the legislation.  And on the 19^th of June 2009, the defendant registered the ship.

It was noted that sea trials were only permitted, however, in Trinity Bay, but the ship did travel to Thursday Island, and broke down on a number of occasions on the way, and it was grounded on a reef on the 4^th of July 2009.  It subsequently floated free and continued on to Thursday Island.  It was noted that the port there couldn’t accommodate a ship of that size, so it had to anchor off-shore.  And it continued to remain there right up to the time of sentence, in what was described as a state of continuing disrepair.

In June of 2011, the respondent was convicted in the Magistrates Court for operating an unsafe, unseaworthy ship; and for failing to have insurance for the voyage to Thursday Island;  and in relation to the actual grounding of the ship on the reef.  It was noted in the facts alleged that he was fined a total of $15,000 in relation to those matters.

It was also noted that an order was made under section 127 of the Act that he must remove the ship from Queensland waters within a period of three months, including having all pollutants removed from the ship.  It was noted that he failed to comply with that order, and that in February of 2013, he was convicted of an offence of failing to comply with that order.  This matter was dealt with in the Cairns Magistrates Court, and it was noted that the Magistrate, on the 27^th of February 2013, dealt with him for the noncompliance. 

The learned Magistrate on this occasion was advised that the earlier Magistrate accepted that the respondent had been trying to comply with the order, and that rather than impose any financial penalty, she would allow him to utilise his funds in the removal of the ship.  And further orders were made in that regard, and I’ll deal with them when I deal with the particulars.

It was put before the Court that despite those orders, there was not further compliance, although it was accepted that there had been a genuine effort to negotiate the removal of the vessel; but this did not eventuate.  It was also accepted in the submissions placed by the Prosecutor that he did have financial difficulties, and that played a large part in his inability to comply with the order.

It was noted that the ship remained in that position and continued to deteriorate, to the point where the anchor chain had actually rusted through and the ship broke loose

from where it had been anchored, and that it was moved and further inspected and the pollutants on-board – which I understand to be the oil and fuel, and possibly other material – were removed from the vessel.

Interestingly, at the conclusion of the Prosecution submissions – and this is apparent at about line 10 on page 13 of the transcript – the learned Magistrate did ask the respondent whether he agreed with all of what had been said, and he replied that he did.

The learned Magistrate then proceeded to hear submissions from the defendant himself.  He started firstly by talking about some efforts that had been made to do something, and the assistance that was being provided by another person who had been an accountant, who apparently died earlier that year.  He accepted that financial difficulties had been a large part of his problem, but were not the only problem.  He basically told the learned Magistrate that he was taking the necessary steps to have the vessel removed.  He spoke of his own personal circumstances, not only in terms of finances, but also in terms of a recent illness that his wife had sustained, which resulted in an operation, and also his own extensive voluntary work.  It would seem, however, that the actual allegations were not addressed in any particular detail.

It is worthwhile having regard to the particulars contained in the original complaints.  The actual orders on the 27^th of February 2013, as particularised in the complaint, were (1) that within 28 days, a plan was to be submitted to Marine Safety Queensland by the respondent for the vessel to leave Queensland waters;  (2) on or before 27 June 2013, to remove the vessel known as Sattha Uniana from Queensland waters.  It’s also worthwhile considering the particulars provided for the charges numbered 6 and 7.  In relation to charge 6, particulars provided of the notice given under section 86A(2)(a) of the Act were that it was required that the ship’s owner remove all pollutants (including fuels, oils, oily mixtures, acids, garbage and other pollutants) from the ship.  The particulars provided in relation to charge number 7 were (1) that the ship not be operated other than by towing from its current position by a suitable commercial towing vessel and (2) the ship’s owner is to remove the ship from Queensland coastal waters to a suitable place on land.

I have had regard to section 86A of the Act, and I note that the power to provide those notices is set out in subsection (2).  Subsection (4) provides that the owner or master of a ship to whom a notice is given under subsection (2)(a) must comply with the requirements stated in the notice “unless the owner or master has a reasonable excuse”.  There is a maximum penalty provided for of 200 penalty units.  The respondent pleaded guilty to both of these charges before the learned Magistrate, so the issue of “reasonable excuse” did not arise.

I turn now to the Magistrate’s decision.  It was relatively brief.  She indicated that she took into account the pleas of guilty and the fact that he had made genuine efforts to negotiate the removal of the ship, and that he did have financial circumstances which precluded him from complying with the Court orders and notices.  Having

regard to those matters, she imposed the one penalty of $500 in relation to charges numbered 1, 6 and 7.

The bases on which the sentence is alleged to be manifestly inadequate are set out in paragraph 9.4 of the submissions on behalf of the appellant, with the relevant matters being (a) failing to adequately reflect the seriousness of the offences generally;  and in this particular case (b) failing to take into account the extent of the damage and loss caused by the respondent;  (c) failing to sufficiently take into account general deterrence;  (d) placing too much weight on mitigating factors, particularly the respondent’s personal circumstances;  (e) failing to sufficiently take into account the respondent’s sole responsibility for the offences;  and (f) placing too much weight on a previous fine imposed for similar offences committed by the respondent.

The reference in paragraph (f) seems to relate to the inquiries she did make during the course of submissions about what had happened in relation to the earlier fine.  It was not clear to me exactly what happened;  but there was a suggestion that the respondent had undertaken some community service work in lieu of part of that fine, but there was some suggestion that there may have still been some moneys owing and that payments were continuing to be made, at the rate of $15 per fortnight.

It was argued that the offence was a particularly serious one. I was reminded that the maximum penalty under section 127(5) is 3500 penalty units, which I note is substantially higher than the maximum set out under section 86A(4).

I was also referred to the Purposes of the Act as set out in section 3 of the Act.  In section 3(1), it is noted that:

The overall purpose of this Act is to protect Queensland’s marine and coastal environment by minimising deliberate and negligent discharges of ship-sourced pollutants into coastal waters.

Under subsection (3) of section 3, it is set out how this purpose is to be achieved.  Subsection (3)(c) provides for the giving of power to deal with “shipping casualties that are polluting or threatening to pollute coastal waters”, and subsection (3)(e) refers to “providing for the imposition of severe penalties on persons who pollute Queensland’s maritime and coastal environment in contravention of this Act”. 

Basically, it was argued that this was a particularly serious matter;  that the Magistrate did not appreciate or have proper regard to the seriousness of the matter;  and that the seriousness of the matter of itself  demanded that there be a penalty imposed which would be sufficient to deter others from committing the same offence.

I turn now to the respondent’s submissions.  He provided very detailed written submissions, although there was some difficulty in relation to those, as I pointed out to him during the course of argument.  He appeared to challenge the factual basis of a lot of matters which form the basis of the original conviction in 2011 and the

subsequent convictions in 2013.  Neither of these decisions were appealed.  Furthermore, in the passage I referred to on page 13 of the transcript, the respondent accepted the accuracy of the matters that had been placed before the Magistrate.  In short, it is not possible now to go behind those orders, and I have to deal with the matter on the face value of the orders that were made in 2011, and more importantly, again in February of 2013.

He also raised issues in relation to some of the allegations contained in charges 6 and 7, at least insofar as they go towards the reasonableness or otherwise of the directions that were given under the legislation.  Again, it is difficult to go behind those matters, firstly because he agreed with the factual basis that was placed before the learned Magistrate, and secondly because in pleading guilty he has accepted that he did not comply with those particular notices.  I reminded the respondent that the real issue for this Court was one of whether or not the sentence imposed was “manifestly inadequate”, and I required him to concentrate on that.

He did raise one matter in terms of the difficulties that he faced in getting the vessel moved.  He argued that it was not possible to move the vessel once the oil and fuel was removed, and that put him effectively in an invidious position.  It is difficult, however, to accept this argument, because he’s already pleaded guilty to the failure to comply in that light under the notices that were given under section 86A;  and again, I fail to see how I can go behind those matters.  The effect of the earlier orders, coupled with the requirements set out in the notices, which he has admitted by his pleas of guilty that he did not comply with, required him to do or required him to take the necessary steps to remove the vessel.

He also raised with me discussions he had with the representatives of Marine Safety Queensland in the lead-up to the appearance on that day, to the effect that if he pleaded guilty, that there would be a fine imposed and that would be the end of the matter.  He was concerned that it was not the end of the matter, because the Department subsequently appealed.

Again, I have difficulty with this argument, for a number of reasons.  Firstly, there is no evidence before me in relation to that, and no application was made to lead any further evidence;  but in fairness to him I think I should consider the point, because even if there were such evidence available, I fail to see how that would help him.

In this regard, I gained some assistance from the reference by counsel for the appellant to the decision of the Court of Appeal in R v KU and others [2008] QCA 154 at paragraph 96. This was a totally unrelated case, and a much more serious case; but I was referred to the statement of principle in paragraph 96, which provides:

In GAS v the Queen (2004) 217 CLR, 198:

…Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ said that the discretion to dismiss an appeal by a Prosecuting authority on the ground that the Prosecution contributed to the error the subject of the complaint should not be exercised to dismiss an appeal as to sentence in a case where it was not the submission of the Prosecution which “accounted for the sentencing Judge’s error” but the sentencing Judge’s “failure to appreciate, and give sufficient weight to, exactly what the appellants were admitting, in the circumstances of the case, by their pleas of guilty”.  The present is such a case;  and this is so whatever reasons may have led to the Prosecutor to adopt the position he did in relation to the sentencing of the respondents.

In that case, the Prosecutor had advanced a fairly lenient sentence for quite serious charges, and the decision was made against the background of what the Prosecutor had done on that occasion. 

I merely mention that to illustrate that even if there had been some discussions along the line of, “This’ll be the end of it and there’ll only be a fine,” as was alleged, it would not of itself be something which would be relevant, if the appellant could show that there was a failure to appreciate, and give sufficient weight to, exactly what the respondent here was admitting, in the circumstance of the case, by his pleas of guilty.

In this case I must say that the learned Magistrate did not receive detailed submissions from the Prosecution.  There was no reference to the seriousness of the offending other than the reference to the maximum penalty which was involved, and also there did not appear to be any detailed submissions based around the need to take into account the deterrent aspect of sentencing, having regard to that seriousness.

The respondent in argument before me did stress the financial problems, and also stressed the voluntary work that he had undertaken;  and I note that this is along the lines of what he told the learned Magistrate in that same context. 

I have considered the arguments raised by both sides, and it seems to me that this is a case where there was a failure to appreciate, and give sufficient weight to, exactly what it was he was pleading guilty to.  I say that against the background of this matter, which was not in dispute.  Effectively, the vessel by that stage had been left to deteriorate, for some six years, in what were described as “pristine waters” in the Thursday Island area;  further, it had been left for some two years and eight months after the orders that were made by Magistrate Coates on the 27^th of February 2013. 

I consider that there should have been further weight placed on the seriousness of the offending, and particular regard should have been had to the purposes of the legislation.  Further, I find that the Magistrate did place too much weight on the personal circumstances of the respondent in arriving at the overall penalty of $500.  This is a case where I believe general deterrence is very relevant;  and whilst it is by no means the most seriousness of this type of offence, there should be a penalty

imposed which balances the deterrent aspect and the seriousness of the offence with the particular relevant mitigating factors, such as his financial position, his personal circumstances, and the genuine attempts he did make to negotiate a solution earlier.

It seems to me that because of the matters I have identified, the sentence imposed was manifestly inadequate; and it falls upon this Court to resentence him.

In relation to that resentencing exercise, I have taken a number of matters into account in relation to the exercise of my discretion.  Firstly I have taken into account the seriousness of the offence, and this includes the fact that this is the second time that there has been noncompliance with a Court order to what is basically the same effect.  I also consider that there should be a penalty which reflects or which caters adequately for general deterrence, which still at the same time reflects the other matters which are relevant in mitigation.

I take into account the time that has elapsed since the second order was made in February of 2013, and that the situation continued, with the vessel continuing to deteriorate in that or in a nearby position;   I also take into account his pleas of guilty, which were obviously made in a timely fashion and I take into account what was said about his efforts to negotiate some sort of settlement earlier.  I also take into account his personal circumstances, including the voluntary work and his financial position.

In the circumstances, balancing all of these factors, it seems to me that there should be a far more substantial fine than the one that was imposed;  and what I intend to do on charge 1 is to impose a penalty of $5000. 

I will not be imposing any penalty in relation to charges 6 and 7.  When one looks at it closely, the conduct or the failure which is relevant for the purposes of counts 6 and 7 is basically the same which is relevant for charge number 1;  so it seems to me that the best way to deal with the matter would be to convict and not further punish in relation to those, because I have taken them into account in the overall penalty, for the purposes of charge number 1.

In the circumstances, I make the following orders.  (1) The appeal is allowed.  (2) The penalty imposed in relation to charges numbered 1, 6 and 7 is set aside.  (3) On charge number 1 the respondent is fined the sum of $5000, which fine is to be referred to the State Penalties Enforcement Register. (4) in relation to charges numbered 6 and 7 on the original complaint, he is convicted and not further punished.

Is there anything else?

MR TREVINO:   Whether to record convictions.

HIS HONOUR:   Sorry.  I should have said.  I have on the others.  I will also add to what I said on count 1 that a conviction is recorded.  And I – in fact, I’ll confirm that

– I’ll do it this way.  I’ll add a further paragraph:  convictions are recorded in relation to all three matters.

MR TREVINO:   Thank your Honour.

HIS HONOUR:   Is there anything else?

MR TREVINO:   No, thank you.

HIS HONOUR:   Mr Williams, that’s my decision.  I hope you understand it?

RESPONDENT:   I do, sir.

HIS HONOUR:   And how I’ve arrived at it.  And that’s basically it.  All right.  Well, thank you both for your assistance today.

RESPONDENT:   Thank – thank you as well, your Honour.

HIS HONOUR:   Yes.

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