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Morrison v Mahon

Morrison v Mahon

Case [2007] NSWLEC 416 18 July 2007

Unconscionable Conduct

Admissibility of Evidence

Environmental Law

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Land and Environment Court

of New South Wales

CITATION: Morrison v Mahon [2007] NSWLEC 416
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:
PROSECUTOR:
Anthony Morrison
DEFENDANT:
Danny Mahon

FILE NUMBER(S): 50014 of 2006

CORAM: Biscoe J

KEY ISSUES: Prosecution :- sentence - plea of guilty to a marine pollution charge - extent and cause of discharge of oil - whether "act" includes omission in s 8A Marine Pollution Act 1987 - whether charge limited to one act causing one discharge - whether charge otherwise impermissibly duplicitous - 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 8A

CASES CITED: Barbara Filipowski v Vopak Terminals Sydney Pty Ltd [2006] NSWLEC 104;
Cabonne Shire Council v Environment Protection Authority (2001) 115 LGERA 304;
Director of Public Prosecutions v Merriman [1973] AC 584;
Environment Protection Authority v Middle Harbour Constructions Pty Ltd (2002) 119 LGERA 440;
Ex parte Fitzgerald; Re Gordon (1945) 45 SR (NSW) 182;
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 14;
Hoogendoorn v MISR Shipping Company and Hassan [2001] NSWLEC 171;
Krakouer v The Queen (1998) 194 CLR 202;
Morrison v Che Mat and Others (1997) 95 LGERA 212;
Morrison v Peacock and Roslyndale Shipping Co Pty Limited [2003] NSWLEC 68;
Pace Farm Egg Products Pty Ltd v Newcastle City Council (2006) 151 LGERA 260;
Postiglione v The Queen (1997) 189 CLR 295;
R v Hamzy (1994) 74 A Crim R 341;
R v Howard (1992) 29 NSWLR 242;
R v Li [2005] NSWCCA 154;
R v Moussad (1999) 152 FLR 373;
R v Phillips (1971) 45 ALJR 467;
R v Slattery (1996) 90 A Crim R 519;
R v Thomson; R v Houlton (2000) 49 NSWLR 383;
R v Wilson (1979) 69 Cr App Rep 83;
S v The Queen (1989) 168 CLR 266;
Thorneloe v Filipowski [2001] NSWCCA 213, (2001) 52 NSWLR 60;
Walsh v Tattersall (1996) 188 CLR 77;
Webb…

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 Morrison v Mahon

Details

AGLC: Morrison v Mahon [2007] NSWLEC 416
Case: [2007] NSWLEC 416
Decision Date: 18 July 2007

CaseChat Overview and Summary

In Morrison v Mahon, the chief engineer of a vessel pleaded guilty to charges under s 8A of the Marine Pollution Act 1987 for causing two discharges of oil into Sydney Harbour. The court needed to determine what discharges of oil occurred on 5 November 2002 and what act of the chief engineer caused those discharges. The court also needed to decide whether an "act" under s 8A includes an omission, whether the charge was duplicitous, and what penalty to impose.

The court found that there were two discharges of oil, both caused by the chief engineer operating a pump. The court rejected the prosecutor's argument that there was a continuous leak before the vessel docked at Garden Island. The court also found that the term "act" in s 8A does not include an omission, but this was not necessary to decide because the chief engineer had caused two discharges by using the pump. The court held that it was not duplicitous to charge the chief engineer with one offence for both acts of pumping.

In sentencing, the court considered mitigating factors like the minor environmental harm caused, the offence not being planned, the chief engineer having no prior convictions and being of good character, and his remorse and early guilty plea. However, the court found that the chief engineer should not be dealt with under s 10 of the Crimes (Sentencing Procedure) Act 1999 because he could have taken steps to avoid the discharges. The court imposed a fine of $35,000, taking into account the increased maximum penalty under s 8A and seeking parity with the sentences for the owner and master.

Orders