Morrison v Defence Maritime Services Pty Ltd - [2007] NSWLEC 421

Land and Environment Court

of New South Wales

CITATION: Morrison v Defence Maritime Services Pty Ltd and Coates [2007] NSWLEC 421

PARTIES:
50049 of 2005
PROSECUTOR:
Anthony Morrison
DEFENDANT:
Defence Maritime Services Pty Ltd
50048 of 2005
PROSECUTOR:
Anthony Morrison
DEFENDANT:
Allen Coates

FILE NUMBER(S): 50048-49 of 2005

CORAM: Biscoe J

KEY ISSUES: Prosecution :- sentence - plea of guilty to a marine pollution charge - extent and cause of discharge of oil - sentencing considerations - result offence - potential for result to occur cannot be taken into account on sentencing but proper to take into account when exercising statutory discretion whether to dismiss proceedings without proceeding to conviction - whether higher penalties ordinarily result where parliament has increased maximum penalty - parity of sentencing

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 ss 10, 21A(3), 22
Marine Pollution Act 1987 s 8

CASES CITED: Barbara Filipowski v Vopak Terminals Sydney Pty Ltd [2006] NSWLEC 104;
Cabonne Shire Council v Environment Protection Authority (2001) 115 LGERA 304;
Environment Protection Authority v Middle Harbour Constructions Pty Ltd (2002) 119 LGERA 440;
Filipowski v Arta Adhisatya Pte Ltd and Sahea [2002] NSWLEC 169;
Filipowski v Cadem Shipping Pty Ltd & Anor [2005] NSWLEC 552;
Filipowski v Dayton Corporation (2004) 138 LGERA 150;
Filipowski v De Ocampo [1998] NSWLEC 119;
Filipowski v Fratelli D'Amato S.r.l and Others (2000) 108 LGERA 88;
Filipowski v Frey [2005] NSWLEC 661;
Filipowski v Island Maritime Ltd; Majgaonkar [2005] NSWLEC 73;
Filipowski v Mediterranean Shipping Co SA and Ors [2005] NSWLEC 159;
Filipowski v Schiffsbeteiligungsges m.b.H & Co KG (2004) 134 LGERA 48;
Filipowski v Wallenius Lines Singapore Pte Ltd & Anor [2002] NSWLEC 148;
Hoogendoorn v MISR Shipping Company and Hassan [2001] NSWLEC 171;
Morrison v Che Mat and Others (1997) 95 LGERA 212;
Morrison v Peacock and Roslyndale Shipping Company Pty Ltd [2003] NSWLEC 68;
Postiglione v The Queen (1997) 189 CLR 295;
R v Howard (1992) 29 NSWLR 242;
R v Li [2005] NSWCCA 154;
R v Slattery (1996) 90 A Crim R 519;
R v Thomson; R v Houlton (2000) 49 NSWLR 383;
Thorneloe v Filipowski [2001] NSWCCA 213, (2001) 52 NSWLR 60;
Webb v Chung & Ors [2002] NSWLEC 135;
Weininger v The Queen (2003) 212 CLR 629

DATES OF HEARING: 20 - 22, 27 - 28 February 2007; 11 - 12 April 2007; 4, 24 May 2007

DATE OF JUDGMENT:
18 July 2007

LEGAL REPRESENTATIVES: PROSECUTOR:
Mr A L Hill
SOLICITORS:
Dibbs Abbott Stillman

FIRST AND SECOND DEFENDANTS:
Mr G J Grogin
SOLICITORS:
Ebsworth & Ebsworth

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

18 July 2007

50049 of 2005

MORRISON v DEFENCE MARITIME SERVICES PTY LTD

50048 of 2005

MORRISON v COATES
JUDGMENT

1 HIS HONOUR: In November 2002, the owner, master and chief engineer of the 42.7 metre twin screw vessel “Seahorse Horizon”…

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.

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Details

Case: [2007] NSWLEC 421
Decision Date: 18 July 2007

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, Biscoe J heard a case against the owner and master of the vessel Seahorse Horizon for discharging oil into Sydney Harbour in contravention of s 8 of the Marine Pollution Act 1987. The owner and master pleaded guilty. The Court had to determine the extent and cause of the discharge of oil, as well as the appropriate penalty. The Court found that a very slight amount of oil leaked at Garden Island and that between 5 and 15 litres of oil leaked at HMAS Waterhen. The Court did not find that there was a leak between Garden Island and HMAS Waterhen. The Court considered the statutory maximum penalties, the increase in maximum penalties, and the mitigating factors in determining the penalty. The Court found that the master and owner should not be afforded the benefit of s 10 of the Crimes (Sentencing Procedure) Act 1999. The Court also considered the need for parity in sentencing between the owner, master and chief engineer. The Court imposed a fine of $35,000 on the owner and a fine of $30,000 on the master. The Court found the defendants guilty, imposed the fines and reserved costs.

Orders