Filipowski v Arta Adhisatya Pte Ltd and Sahea - [2002] NSWLEC 169

Land and Environment Court

of New South Wales

CITATION: Filipowski v Arta Adhisatya Pte Ltd and Sahea [2002] NSWLEC 169

PARTIES:
Matter No 50114 of 2001
PROSECUTOR
Filipowski
DEFENDANT
Arta Adhisatya Pte Ltd
Matter No 50115 of 2001
PROSECUTOR
Filipowski
DEFENDANT
Sahea

FILE NUMBER(S): 50114 of 2001 and 50115 of 2001

CORAM: Pearlman J

KEY ISSUES: Environmental Offences :- marine pollution - plea of guilty - lack of evidence as to how offence occurred - penalty

LEGISLATION CITED: Marine Pollution Act 1987 s 18(1)

CASES CITED: R v O'Neill (1979) 2 NSWLR 582;
R v Thomson (2000) 49 NSWLR 383;
Morrison v Mafi and Anor (Bignold J, NSWLEC, 8 August 1997, unreported)

DATES OF HEARING: 05/08/2002

DATE OF JUDGMENT:
09/30/2002

LEGAL REPRESENTATIVES:

PROSECUTOR
Mr A L Hill (Barrister)
SOLICITORS
Abbott Tout
DEFENDANTS
Mr G J Grogin (Barrister)
SOLICITORS
Norton White

JUDGMENT:

50114 of 2001 and 50115 of 2001

Pearlman J
30 September 2002

Matter No 50114 of 2001

BARBARA FILIPOWSKI

Prosecutor

ARTA ADHISATYA PTE LTD

Defendant

BARBARA FILIPOWSKI

Prosecutor

NICOLAS SAHEA

Defendant

Judgment

Introduction

1 These proceedings concern the discharge of vegetable oil into the waters of Darling Harbour on 19 January 2000.

2 The defendant (in proceedings No 50114 of 2001), Arta Adhisatya Pte Ltd (“the owner”), has pleaded guilty to a charge that it was the owner of a ship, namely the vessel “Andhika Adhisatya” (“the ship”), from which a discharge of a liquid substance carried as cargo or part cargo in bulk, namely, vegetable oil known as palm stearin, occurred into State waters, namely, the waters of Darling Harbour, Port Jackson, in contravention of s 18(1) of the Marine Pollution Act 1987. The defendant (in proceedings No 50115 of 2001), Nicolas Sahea, has pleaded guilty to a charge that he was the master of the ship from which the discharge occurred contrary to s 18(1).

3 Section 18(1) is relevantly in the following terms:

18(1) Subject to subsection (2) and subsections (4) to (12) (inclusive), if any discharge of a liquid substance, or of a mixture containing a liquid substance, being a substance or mixture carried as cargo or part cargo in bulk, occurs from a ship into State waters, the master and the owner of the ship…are each guilty of an offence, punishable, upon conviction, by a fine …

4 The maximum penalty, in the case of a corporation, is $1,100,000, and, in the case of an individual, is $220,000.

5 By leave, both matters were heard together, and the evidence was the same in respect of both proceedings.

6 Although the defendants do not resile from their respective pleas of guilty, and although they each acknowledge that such a plea amounts to an admission of each element of the offences with which they are respectively charged (R v O’Neill (1979) 2 NSWLR 582), they were not able to agree with the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Filipowski v Arta Adhisatya Pte Ltd and Sahea

Details

AGLC: Filipowski v Arta Adhisatya Pte Ltd and Sahea [2002] NSWLEC 169
Case: [2002] NSWLEC 169
Decision Date: 09/30/2002

CaseChat Overview and Summary

The Land and Environment Court of New South Wales heard a case involving the discharge of vegetable oil into the waters of Darling Harbour on 19 January 2000. The defendants, Arta Adhisatya Pte Ltd and Nicolas Sahea, were charged with offences under the Marine Pollution Act 1987. Arta Adhisatya Pte Ltd, the owner of the vessel "Andhika Adhisatya," pleaded guilty to the offence of being the owner of a ship from which a discharge occurred. Nicolas Sahea, the master of the ship, also pleaded guilty to the offence of being the master of a ship from which a discharge occurred. The maximum penalty for a corporation is $1,100,000, and for an individual, it is $220,000.

The court had to determine the appropriate penalty for the offences committed by the defendants. The court considered several factors in determining the penalty, including the nature of the pollutant, the amount discharged, the timing of the guilty pleas, and the lack of cooperation and explanation from the defendants. Although the defendants pleaded guilty, they did not provide any evidence or explanation as to how the discharge occurred. The court also noted that the discharged substance, palm stearin, was not regarded as harmful to aquatic life. Taking these factors into account, the court determined that the offences fell within a low range of penalty.

The court convicted both defendants and imposed a penalty of $25,000 on Arta Adhisatya Pte Ltd and $10,000 on Nicolas Sahea. The court also ordered the defendants to pay the prosecutor's costs. The court did not make any apportionment of costs and held that the defendants should pay the whole of the prosecutor's costs. The court ordered that the exhibits may be returned.

In summary, the court found both defendants guilty of the charges and imposed a penalty on each. The court considered several factors in determining the penalty, including the nature of the pollutant, the amount discharged, and the lack of cooperation and explanation from the defendants. The court also ordered the defendants to pay the prosecutor's costs.

Orders