R v Santos, Bluewind Shipping Ltd - [2011] QDC 254

[2011] QDC 254

DISTRICT COURT

CRIMINAL JURISDICTION

JUDGE DORNEY QC

Indictment No 2355 of 2010

THE QUEEN

BERNARDINO GONZALES SANTOS and
BLUEWIND SHIPPING LIMITED and
CHINA NAVIGATION COMPANY LIMITED and
SWIRE NAVIGATION COMPANY LIMITED and
SWIRE SHIPPING LTD

BRISBANE

..DATE 14/10/2011

SENTENCE

HIS HONOUR: Bluewind Shipping Limited and Swire Navigation Company Limited have each pleaded guilty in writing pursuant to section 594A of the Criminal Code to counts on indictment 2355 of 2010. They are, respectively, counts 2 and 4.

In terms, the counts read that between the 10th day of March 2009 and the 13th day of March 2009 oil was discharged from the ship, MV Pacific Adventurer, into Queensland coastal waters and at the time of the discharge each company was an owner of the ship, the MV Pacific Adventurer.

The maximum penalty applicable under the provision to which each of these defendants has pleaded guilty - in section 26(1)(a) of the Transport Operations (Marine Pollution) Act 1995 (that I will refer to as TOMPA) - is 3,500 penalty units.
Taken with the effect of section 181B(3) of the Penalties andSentences Act 1992 which multiplies the penalty for a provision which it so stated in that way by five for a corporation, and taken with section 5 of the Penalties andSentences Act which designates $100 for each penalty unit, the maximum that is calculated, therefore, for this provision is $1.75 m.

It must be understood that this maximum penalty is one that applied to events that occurred at the time. Subsequent amendments may well have raised that particular maximum; but the Court is concerned simply with the maximum as it applies to the events in question here. Now, although the submissions raised more widely, my consideration concentrates on the two defendants - whom I have named - who have made their pleas of guilty.

The Pacific Adventurer is a geared, (what is called) ‘tween decked general cargo vessel’, equipped for the carriage of containers. It was registered in Hong Kong. At all relevant times both defendants, Bluewind and Swire, were registered owners of that ship. And, as discussed later, unlike Australian ownership, Hong Kong law permits unlimited shared ownership.

On 9 March 2009, the ship was loaded with cargo in Newcastle, comprising, amongst other things, fifty 20 foot containers which were stowed on the hatch covers on the decks and secured by a lashing system. That lashing system is shown by various photographs which became exhibits, by a manual which was referred to, and by the physical objects which are present in Court. All of them illustrate the nature of the system which I will now describe.

That system was designed to operate as follows.

In all eight corners of each container, each container was provided with corner castings, which had elliptical openings on both horizontal and vertical faces. On the hatch covers and pedestals were welded numerous sliding deck shoes. Manually operated bottom twistlocks were inserted into those deck shoes by…

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.

Keep reading for free

Create a free CaseChat account to read R v Santos, Bluewind Shipping Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2011] QDC 254
Decision Date: 14/10/2011

CaseChat Overview and Summary

In the case of R v Santos, Bluewind Shipping Ltd, the defendants, Bluewind Shipping Limited and Swire Navigation Company Limited, pleaded guilty to charges under section 26(1)(a) of the Transport Operations (Marine Pollution) Act 1995 (TOMPA) for discharging oil into Queensland coastal waters. The court considered the maximum penalty of 3,500 penalty units for each defendant, multiplied by five due to their corporate status, resulting in a maximum fine of $1.75 million each. The court also considered the legal issues regarding the interpretation of the maximum penalty for multiple offenders and the appropriate sentence for each defendant.

The court concluded that the maximum penalty applied to each offender individually, and each defendant should be treated equally due to the lack of evidence showing one defendant was more culpable than the other. The court also found that the case, while serious, did not fall into the worst category of environmental offences. The mitigating factors, including timely pleas, cooperation with authorities, and substantial contributions to the clean-up efforts, were taken into account.

The court imposed a fine of $600,000 on each defendant, totaling $1.2 million, and ordered them to publish an apology. The defendants were given 60 days to pay the fines, with a deadline of 14 December 2011. The court also made an order for the release of certain physical exhibits to Crown Law until the expiration of the appeal period or the payment of the fines, whichever occurred earlier. The court declined to consider not recording convictions for the defendants, emphasizing the importance of convictions being noted on the record for such significant environmental offences.

Orders