Thorneloe v Filipowski - [2001] NSWCCA 213

No judgment structure available for this case.

Reported Decision:
(2001) 116 LGERA 56
52 NSWLR 60
123 A Crim R 92

New South Wales

Court of Criminal Appeal

CITATION: THORNELOE v FILIPOWSKI [2001] NSWCCA 213 revised - 1/08/2001

FILE NUMBER(S): CCA 60004/01

HEARING DATE(S): 25 May 2001

JUDGMENT DATE:
30 July 2001

PARTIES :

Peter Charles Thorneloe (Appellant)
Barbara Filipowski (Respondent)

JUDGMENT OF: Spigelman CJ at 1; Hulme J at 194; Howie J at 219

LOWER COURT JURISDICTION: Land and Environment Court

LOWER COURT FILE NUMBER(S) : 50039/00; 50046/00

LOWER COURT JUDICIAL
OFFICER : Talbot J

COUNSEL : I Barker QC / R Sutherland (Appellant)
R Ellicott QC / A Hill (Respondent)

SOLICITORS: Blake Dawson Waldron (Appellant)
Abbott Tout (Respondent)

CATCHWORDS: ENVIRONMENTAL LAW - sentencing - consistency - Marine Pollution Act 1987, s27(1) - CRIMINAL LAW - sentencing - discretion to dismiss a charge without proceeding to conviction - "potential for harm" - Crimes (Sentencing Proceedure) Act 1999, s10

LEGISLATION CITED: Clean Waters Act 1970
Courts Legislation Amendment Act 2000
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Environmental Offences and Penalties Act 1989
Marine Pollution Act 1987
Occupational Health and Safety Act 1983

CASES CITED:
Brownlie v State Pollution Control Commission (1992) 27 NSWLR 78
Clarke v Environment Protection Commission (1997) 98 LGERA 114
Cobiac v Liddy (1969) 119 CLR 257 at 269
Director of Public Prosecutions v Stonehouse [1978] AC 55
Environmental Protection Authority v Bathurst City Council (1995) 89 LGERA 79
Federal Steam Navigation Co Ltd v Department of Trade and Industry [1974] 1 WLR 505
Filipowski v De Ocampo [1998] NSWLEC 119
Filipowski v Esar Bunkering Group Ltd (Lloyd J, 17 November 1998, unreported)
Filipowski v Fratelli D’Amato Srl (2000) 108 LGERA 88
Filipowski v Ryong [1998] NSWLEC 63
Filipowski v Terminals Pty Ltd (1999) 105 LGERA 165
Gammon (Hong Kong) Ltd v Attorney General of Hong Kong [1985] AC 1
He Kaw Teh v The Queen (1984-1985) 157 CLR 523
Hoare v The Queen (1989) 169 CLR 348
House v The Queen (1936) 55 CLR 499
Hunter Water Board v State Rail Authority of New South Wales [No 2] (1992) 75 LGRA 22
Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (1999) 90 IR 464
Leighton v Office of Marine Administration (NSW Court of Criminal Appeal, 5 December 1997, unreported)
Lim Chin Aik v The Queen [1963] AC 161
Lowe v The Queen (1984) 154 CLR 606
Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council (No 2) [2001] NSWCA 28
McConnell Dowell Constructors (Aust) Pty Ltd v Environmental Protection Authority (2000) 50 NSWLR 127
Morrison v Ausmarine Fisheries Pty Ltd (1995) 88 LGERA 442
Morrison v Che Mat (1997) 95 LGERA 212
Morrison v Dilmun Navigation Co Pty Ltd (1995) 87 LGERA 257
Morrison v Kingston Marine Corporation Inc (Pearlman J, 26 February 1997, unreported)
Morrison v MAFI (Bignold J, 8 August 1997, unreported)
Morrison v Michel (Stein J, unreported, 14 June 1996)
Morrison v Peers (1995) 87 LGERA 39
Morrison v Spliethoffs Bevrachtingscantoor BV (1996) 91 LGERA 318
Morrison v Valle (1995) 87 LGERA 278
R v Ingrassia (1997) 41 NSWLR 447
R v Jurisic (1998) 45 NSWLR 209 at 221D-
R v Morgan (1993) 70 A Crim R 368
R v Wong (1999) 48 NSWLR 340
Schultz v Tamworth City Council (1995) 58 IR 221
State Rail Authority of New South Wales v Hunter Water Board (1992) 28 NSWLR 721
Taylor v Environment Protection Authority (2000) 50 NSWLR 48
The Queen v De Simoni (1980-1981) 147 CLR 383Thompson v The Queen (1988-1989) 169 CLR 1
Treacy v Director of Public Prosecutions [1971] AC 537
Tyler v Sydney Electricity (1993) 47 IR 1
Valle v Morrison (NSW Court of Criminal Appeal, 22 November 1995, unreported)
Veen v The Queen (No 2) (1987-1988) 164 CLR 465
Wong v Melinda Group Pty Ltd (1998) 82 IR 118
WorkCover Authority of New South Wales v Ecolab Pty Ltd (1999) 90 IR 413
WorkCover Authority of New South Wales v Fernz Construction Materials Ltd (No 2) (2000) 100 IR 23
WorkCover Authority of New South Wales v Profab Industries Pty Ltd (2000) 49 NSWLR 700

DECISION: 1. Appeal allowed; 2. Order of the Land and Envvironment Court convicting and fining the Appellant set aside; 3. The offence in proceedings No. 50039 of 2000 in the Land and Environment Court is proved but no conviction is recorded and the proceedings are dismissed; 4. Costs order made by Talbot J in proceedings No. 50039 of 2000 in the Land and Environment Court against the Appellant to stand.

IN THE COURT OF
CRIMINAL APPEAL

60004/01

SPIGELMAN CJ

HULME J

HOWIE J

Monday 30 July 2001

Peter Charles THORNELOE v Barbara FILIPOWSKI

The Appellant was the Master of a vessel from which a small amount of oil was discharged into the waters of Botany Bay during loading operations. Both he and the owner were charged and pleaded guilty to an offence against s27(1) of the Marine Pollution Act 1987. At sentencing proceedings before Talbot J in the Land and Environment Court, the owner was fined $38,000. The Appellant sought that his Honour apply s10 of the Crimes (Sentencing Procedure) Act 1999 (“the Sentencing Act”) and dismiss the charge against him. His Honour refused to do so and fined the Appellant $7,000. The Appellant appealed.

Held
A Inconsistency
per Spigelman CJ, Hulme and Howie JJ agreeing

1 The decision of the trial judge not to dismiss the charge under s10 was not inconsistent with other sentencing decisions of the Land and Environment Court. There is no practice in the Land and Environment Court to apply s10 of the Sentencing Act in the case of a blameless Master when the company is also convicted and punished. Each case turns on its own facts. Morrison v Peers (1995) 87 LGERA 39, Morrison v Dilmun Navigation Co Pty Ltd (1995) 87 LGERA 257, Morrison v Ausmarine Fisheries Pty Ltd (1995) 88 LGERA 442, Valle v Morrison (NSW Court of Criminal Appeal, 22 November 1995, unreported), Morrison v Spliethoffs Bevrachtingscantoor BV (1996) 91 LGERA 318, Morrison v Che Mat (1997) 95 LGERA 212, Morrison v Kingston Marine Corporation Inc (Pearlman J, 26 February 1997, unreported), Leighton v Office of Marine Administration (NSW Court of Criminal Appeal, 5 December 1997, unreported), Filipowski v De Ocampo [1998] NSWLEC 119, Filipowski v Fratelli D’Amato Srl (2000) 108 LGERA 88 discussed.

B Potential for Harm
per Spigelman CJ and Hulme J, Howie J agreeing

2 Section 27 of the Marine Pollution Act is a “result offence”. Sentencing for an offence under s27 may not take into account the potential for the result to occur. Brownlie v State Pollution Control Commission (1992) 27 NSWLR 78, Environment Protection Authority v Bathurst City Council (1995) 89 LGERA 79, McConnell Dowell Constructors (Aust) Pty Ltd v Environmental Protection Authority (2000) 50 NSWLR 127, Taylor v Environment Protection Authority (2000) 50 NSWLR 48, The Queen v De Simoni (1980-1981) 147 CLR 383 referred to.

3 The issue in the present case turns on s10 of the Sentencing Act. Section 10 has a scope and purpose which extends beyond the elements of the offence charged. The risk to which society was subjected is a proper consideration to be taken into account under s10, even in the context of a strict liability result offence like s27 of the Marine Pollution Act. Talbot J did not err in taking into account potential for harm. Cobiac v Liddy (1969) 119 CLR 257, R v Ingrassia (1997) 41 NSWLR 447 referred to.

C The Exercise of the Statutory Power
per Spigelman CJ, Howie J agreeing

4 Even in an offence of strict liability, no public purpose is served by recording a conviction or imposing a penalty where the accused could not have done anything to ensure that the offence or the adverse consequences did not occur. Lim Chin Aik v The Queen [1963] AC 161, Federal Steam Navigation Co Ltd v Department of Trade and Industry [1974] 1 WLR 505, Gammon (Hong Kong) Ltd v Attorney General of Hong Kong [1985] AC 1, He Kaw Teh v The Queen (1984-1985) 157 CLR 523 applied.

5 When, as in the case of s27 of the Marine Pollution Act, Parliament has expressly provided that both the owner and Master may be held liable for the same pollution, there is no reason to invoke a concept like “double penalty” as if it restricted the sentencing court in any way. Federal Steam Navigation Co Ltd v Department of Trade and Industry [1974] 1 WLR 505 referred to.

per Spigelman CJ and Hulme J, Howie J agreeing

6 His Honour erred in failing to take into account a relevant consideration under s10, namely, what the Master could effectively have done.

D Exercise of the Discretion
per Spigelman CJ and Hulme J, Howie J agreeing

7 In this case it is appropriate to exercise the discretion under s10 of the Sentencing Act.

1 Appeal allowed.

2 Order of the Land and Environment Court convicting and fining the Appellant set aside.

3 The offence in proceedings No. 50039 of 2000 in the Land and Environment Court is proved but no conviction is recorded and the proceedings are dismissed.

4 Costs order made by Talbot J in proceedings No. 50039 of 2000 in the Land and Environment Court against the Appellant to stand.

IN THE COURT OF

CRIMINAL APPEAL

60004/01

SPIGELMAN CJ

HULME J

HOWIE J

Monday 30 July 2001

Peter Charles THORNELOE v Barbara FILIPOWSKI
JUDGMENT

1 SPIGELMAN CJ: The Appellant pleaded guilty to a charge of an offence against s27(1) of the Marine Pollution Act 1987. He was sentenced by Talbot J in the Land and Environment Court on 12 December 2000. The sentence imposed upon him was a fine of $7,000.

2 This appeal is brought pursuant to s5AA of the Criminal Appeal Act 1912 as applied by s5AB of that Act. Section 5AA was amended by the Courts Legislation Amendment Act 2000 which repealed the former ss5AA(3) and (3A).

3 The amendments to s5AA apply to appeals with respect to convictions or orders made after 25 September 2000 (see clause 6 of schedule 1, Criminal Appeal Act). For appeals after that date, of which the present is one, the appeal is an appeal in the strict sense.

Facts

4 At 11:18am on 12 August 1999, the tanker MT Eburna berthed at the No. 1 berth at the Caltex wharf at Kurnell. After appropriate safety checks, gas oil, which had been loaded in Western Australia, commenced to be discharged. That operation was carried on without incident between 1.10pm on 12 August 1999 and 5.15am on 13 August 1999.

5 On 13 August, the Master of MT Eburna, the Appellant, Peter Charles Thorneloe, received instructions to back-load a cargo of unleaded petrol which was to be transported to Melbourne. That petrol was to be loaded and distributed into a number of tanks on board the vessel.

6 Prior to the back-loading, appropriate checks were carried out by the crew of the vessel. In addition the Loading Master and the Surveyor from the Caltex terminal went on board to carry out checks, including a tank inspection and to take ullages - that is measure the capacity of the tanks. Permission was given by the terminal for the commencement of the loading. The operation commenced at 7.46am on 14 August 1999. It was anticipated that loading would continue for approximately 22 hours.

7 During the loading operation, the deck of the vessel was contained by the plugging of scuppers from the deck. This was intended to ensure that any spillage or overflow of oil product onto the deck area remained contained on board the vessel.

8 Rain fell during the loading period. On several occasions during the night, in order to allow rain water to drain from the deck, the scupper plugs were loosened and then re-tightened. Part way through the operation, the loading was suspended due to a thunderstorm. This was at approximately 7.35pm on 14 August 1999.

9 At 5.00am on 15 August 1999, Mr John Porter, a Sydney Ports Corporation Officer, prepared for a routine inspection of the tanker. At approximately 5.15am, having just left the Loading Master’s office, Mr Porter saw petrol coming from a vent about 5 metres aft of MT Eburna’s manifold and flowing over the deck. He immediately alerted the Load Master and went to the cargo room to speak to the Duty Officer.

10 The Appellant had been physically on duty on 14 August 1999 until 11.00pm when he retired. On the morning of 15 August he arrived at the cargo room at about the same time as Mr Porter did. He was able to give instructions to deal with the incident when it occurred. According to the sentencing judge, he acted “promptly and responsibly”. Pumping ceased very shortly afterwards.

11 Mr Porter observed that although there was petrol on the deck area of MT Eburna up to four to five inches in depth, only a small amount came down the side of the vessel and into the water.

12 The estimates of the amount of oil which was discharged to the water varied from a few litres up to 30 litres. On all accounts it was not large and did not require remedial action. It was barely detectable on the surface of the water.

13 The petroleum that was discharged escaped from the deck through a scupper plug which had not been fully re-tightened after it had been loosened to let rain water escape. When pumping was ceased a crewman tightened the nut on the relevant scupper plate.

14 A Nakakita gauge is used on tankers to measure the ullage in a tank. It consists of a float in the tank suspended on a wire which is attached to a drum mechanism on deck. There is an air supply and a spring in the drum which applies a tension to the wire. As the liquid level lightens, the float in the drum revolves, taking in the wire and this is displayed on a digital readout on deck and in the cargo control room.

15 If the liquid does not lighten the load of the float sufficiently, the drum will not revolve and therefore a false reading is given. The float moves below the surface of the liquid and becomes “stuck”. The Appellant said in his evidence before Talbot J that: “It is not uncommon for the Nakakita gauge to become stuck because of the way it operates”.

16 During the reloading, the No. 5 port Nakakita gauge had been “sticking”. It was reported on the changeover of watch at 4.00am on 15 August 1999.

17 It is of significance in this case that the Chief Officer who failed to recognise the defective reading being given by the Nakakita gauge on this occasion, did not do so as a result of the fact that he did not know that such gauges do behave in this manner. Indeed, he had been expressly told by the Second Officer, on the changeover, that this particular gauge had been sticking on that night. In view of the relatively simple nature of the required remedial action - a mere flicking motion - his failure to act on this information becomes pertinent to the issue as to what, if any, further action could have been expected on the part of the Master.

18 Talbot J, adopted the Appellant’s submissions before him with respect to the cause of the discharge. Those submissions were:

“The discharge into the water of a portion of the unleaded petrol on deck was directly caused by the failure of the crew to have properly tightened a scupper plug or plugs on the port aft side of the ship. Scupper plugs had been in place and secured before the loading operation commenced, but had been slackened off to permit rain water to escape on occasion through the procedure. The weeping of unleaded petrol through the scupper, and hence down the ship’s side and onto the water, was stopped by a tightening of the bolt holding the scupper plug.

The discharge of unleaded petrol to deck was clearly caused by the failure of the Chief Officer to adequately monitor a Nakakita gauge indicating the level in the No. 5 port wing tank. The gauge had been reported as ‘sticking’ when the Chief Officer came on duty.

Had the Chief Officer properly observed and monitored the gauge, and had he immediately reacted to the alarm which would have sounded as the tank approached completion, the discharge of petrol onto the deck would have been avoided.”

19 The owner of the ship, Shell Tankers (UK) Ltd (“Shell”) and the Appellant, as the Master of the ship, were summoned to appear in the Land and Environment Court on 8 September 2000 by the prosecutor, the Respondent in this appeal, to answer a charge which alleged contravention of s27(1) of the Marine Pollution Act 1987 (“the Act”).

20 Section 27(1) is in the following terms:

“If a discharge to which this Part applies occurs, each appropriate person in relation to the discharge and any other person whose act caused the discharge, are each guilty of an offence punishable, upon conviction, by a fine not exceeding:

(a) if the offender is a natural person - 2,000 penalty units, or

(b) if the offender is a body corporate - 10,000 penalty units.”

21 The conversion of those penalty units into amounts is $220,000 for a natural person and $1,100,000 for a body corporate.

22 “Appropriate person” is defined in s25(1)(b) and means, relevantly, “the owner or the master of the ship”.

23 Section 26 provides:

“This Part applies to a discharge of oil … into State waters:

(a) from a ship … in or in connection with a transfer operation.”

24 “Transfer operation” is defined in s25(1) to mean, relevantly:

“… any operation that is involved in the … carrying on … of, a transfer of oil … to or from a ship or a place on land.”

25 On the return date, both the Appellant and Shell pleaded guilty. The proceedings before Talbot J concerned only the issue of penalty. The hearing occurred on 11 December 2000 and judgment was given the following day.

26 His Honour noted that Shell conceded that it was liable for the failure of the Chief Officer to adequately monitor the Nakakita gauge and for the failure of the relevant crew member to properly tighten the scupper plugs on the port side of the ship after they had been slackened off to allow rain water to escape during the loading and unloading operation.

27 Shell was fined $38,000. In his Honour’s opinion, that penalty:

“… takes account of the actual circumstances under which the offence occurred where there was a faulty gauge and operational error and carelessness on the part of the chief officer and an unidentified crew member, the clean record of the defendant, and the early plea of guilty. Otherwise the appropriate penalty would, in my view, be significantly over $50,000.” (at [35])

28 No appeal is brought from this aspect of his Honour’s decision.

29 Although Shell conceded its liability, it was submitted on behalf of the Appellant, that because his involvement in the events which caused the incident was such that there was no direct fault on his part and, having regard to the penalty that was to be imposed on the owner, he should be given the benefit of s10 of the Crimes (Sentencing Procedure) Act 1999 (“the Sentencing Act”) by dismissing the charge against him.

30 Section 10 empowers a court to dismiss a charge without proceeding to a conviction, notwithstanding a finding of guilt. His Honour did not think it was appropriate in the circumstances of this case to apply s10. His Honour referred to a number of decisions including four decisions of Bignold J, namely Morrison v Peers (1995) 87 LGERA 39; Morrison v Dilmun Navigation Co Pty Ltd (1995) 87 LGERA 257; Morrison v Ausmarine Fisheries Pty Ltd (1995) 88 LGERA 442 and Morrison v Valle (1995) 87 LGERA 278.

31 The Appellant relied upon his Honour’s own decision in Filipowski v Fratelli D’Amato Srl (2000) 108 LGERA 88 at [137] where his Honour said:

“… the Captain of the ship is properly to be regarded as the direct and immediate representative of the owner while the ship is under his command. To punish the Master or Captain of the ship personally for an occurrence over which he had no personal control, except in a detached overall sense where the owner had already been punished on the basis of its vicarious responsibility and the person directly responsible will also be punished, would, in my opinion be an excessive and unreasonable punishment.”

32 Talbot J distinguished that decision when he said:

“In that case it should be noted that both the owner and the person actually responsible were convicted and heavy penalties imposed on them.” (at [28])

33 His Honour said that neither the Appellant nor Shell had had any prior convictions for this type of offence, and, in particular, that the Appellant had “an impeccable record at sea dating back to 1973”.

34 His Honour was of the opinion that although the amount of discharge was small:

“…nevertheless, the potential for significant harm arose as a consequence of the two established serious lapses in proper procedure. The Master must ultimately bear a responsibility for these breaches as the person in overall charge of the ship’s operations. It is not appropriate in the circumstances to apply the provisions of s10 of the Crimes (Sentencing Procedure) Act 1999.” (at [33])

35 His Honour concluded:

“An appropriate fine for the Master having regard to the whole of the circumstances is $7,000.” (at [36])

36 The Appellant appeals from Talbot J’s decision.

Appeal

37 The Notice of Appeal asserts a single ground of appeal:

“In the circumstances of the commission of the offence, the objective features of the appellant, and the concurrent prosecution and conviction of the owner of the ship, it was inexpedient to record a conviction against the Master.”

38 This is a reference to s10 of the Sentencing Act. Section 10 states:

“(1) Without proceeding to conviction, a court that finds a person guilty of an offence may make either of the following orders:

(a) an order directing that the relevant charge be dismissed,

(b) an order discharging the person on condition that the person enter into a good behaviour bond for a term not exceeding 2 years.

(2) An order referred to in subsection (1)(b) may be made if the court is satisfied:

(a) that it is inexpedient to inflict any punishment (other than nominal punishment) on the person, or

(b) that it is expedient to release the person on a good behaviour bond.

(3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors:

(a) the person’s character, antecedents, age, health and mental condition,

(b) the trivial nature of the offence,

(c) the extenuating circumstances in which the offence was committed,

(d) any other matter that the court thinks proper to consider.”

39 Section 10 commenced operation on 3 April 2000. It replaced s556A of the Crimes Act 1900, which was to the same effect. Much of the relevant case law deals with s556A of the Crimes Act.

40 The Appellant submitted that he should not have been convicted and fined, but should have been given the benefit of s10. Submissions were directed to a dismissal under s10(1)(a), not a conditional discharge under a10(1)(b).

41 The former s556A contained the formulation “it is inexpedient to inflict any punishment” as a stepping stone to both a dismissal and a conditional discharge. This is reflected in the ground in the notice of appeal in this case. As set out above, s10(2) now refers to “inexpediency” only as a stepping stone to an order under s10(1)(b) i.e. a conditional discharge. Nothing turns on this for present purposes.

42 The Appellant particularly relied on the following factual matrix.

(i) The Appellant has an impeccable record at sea, commencing in 1973.

(ii) The Appellant pleaded guilty.

(iii) The ship owner pleaded guilty and was convicted and fined. The Appellant has no “additional moral culpability”; punishing him is a “double penalty”.

(iv) The person who should have carried the blame was the Chief Officer who failed to properly attend to the sticking Nakakita gauge in accordance with prescribed procedure and who subsequently ignored the alarm which ought to have alerted him to the prospect of an overflow.

(v) The second person with some direct culpability was an unidentified crew member who was negligent in failing to adequately re-tighten the scupper plug after it was loosened to allow the discharge of foam water from the deck.

43 The submissions proceeded on the basis that the Appellant had to identify an error in the exercise of the sentencing discretion by Talbot J. A number of specific submissions were made as to how the discretion miscarried.

44 The first submission was that his Honour failed to give appropriate effect to the principle of consistency in sentencing.

45 The second submission was that his Honour erred when he took into account the “potential” for damage to the environment and not merely the actual harm that had occurred.

46 The third submission was that his Honour failed to take into account the circumstances of the case, in that he failed to give any or, alternatively, adequate consideration to the grounds that existed for the exercise of the statutory power under s10(1).

47 The fourth submission was that Talbot J failed to adequately articulate his reasons for decision.

48 The fifth submission was that the decision to record a conviction and impose a penalty was, in the circumstances, “contrary to public policy and the evinced purposes of the Act”.

49 The Respondent submitted that the decision of Talbot J was appropriate for three reasons. First, the factual circumstances show that the Appellant was culpable in failing to ensure that the Chief Officer monitored the Nakakita gauge and that the crew were reminded of their responsibilities when loosening the scupper plugs; secondly, due to the principles in the case law relevant to s10 of the Sentencing Act (and its precursor - s566A of the Crimes Act); and thirdly, by application of the principles said to have been laid down by this Court in Valle v Morrison (NSW Court of Criminal Appeal, 22 November 1995, unreported) and in Leighton v Office of Marine Administration (NSW Court of Criminal Appeal, 5 December 1997, unreported).

50 As to the first point, the Respondent submitted that the Appellant was culpable in that he knew of the potential problems associated with Nakakita gauges in “light” cargo and should have ensured the Chief Officer was aware of these problems too. Further, he was aware of the wet conditions and should have reminded the officers and crew of the need to tighten scupper plugs after rain water was drained off the deck.

51 In relation to the second point, the Respondent submitted that the cases which have applied s10 (or s556A) are distinguishable from the present case.

52 The third point arises from the statement of Allen J, with whom Gleeson CJ and Sully J agreed in Valle v Morrison (supra):

“It is a matter of notoriety that all too often it is not possible to sheet home to any individual responsibility for a spillage in the sense of establishing that it was his act or omission which caused it. The purpose of s8 in imposing strict liability upon the owner and upon the master, as well as upon any individual found to be responsible, is to deal with this potential disaster of oil spillage by making the owner and the master responsible without personal fault. In those circumstances an argument that no punishment should be visited on a master, unless personal fault is established, is clearly untenable.” (at 7-8)

53 The Appellant submitted that Talbot J’s finding that the Master must bear responsibility as the person in overall charge does not imply a finding of culpability as suggested by the Respondent. It was not the Appellant’s duty to “follow the Chief Officer around” to ensure he did everything correctly. It was submitted to be “absurd” to assert that the Appellant should constantly have reminded the crew to tighten the scupper plugs.

The First Submission

54 Consistency in sentencing is an important objective - Lowe v The Queen (1984) 154 CLR 606 at 610-11. Nevertheless, within a range, there is room for differences in approach - R v Morgan (1993) 70 A Crim R 368 at 371; R v Jurisic (1998) 45 NSWLR 209 at 221D-E. The Appellant contended that a pattern had emerged in the practice of the Land and Environment Court to apply s10 in the case of an entirely blameless Master, when the company is also convicted and penalised.

55 In my opinion, the case law does not reveal any such pattern.

56 Indeed, the sentencing judges have been at pains to point out that it was always open to the court to convict both the company and the Master. Furthermore, the cases relied on by the Appellant are distinguishable. Accordingly, a different result raises no issue of consistency.

57 In Morrison v Peers (supra) a small amount of oil was discharged into the water. The estimate in that case was that the amount discharged was 5 to 10 litres. The ship’s crew acted promptly and efficiently in order to clean up the oil and the Master co-operated with the following investigation. Both the owner and the Master pleaded guilty early in the proceedings. In addition, neither the owner or the Master had any prior convictions in respect of an environmental offence. The Master had been at sea since 1961 and had captained ships since 1991. It was also submitted as a factor in mitigation that a conviction of the Master would be likely to prejudice his professional career and expressly present problems for him being in United States waters.

58 Bignold J thought that it was a case where a reasonably lenient penalty should be imposed upon the ship’s owner in view of the fact that it was the owner’s first environmental offence, the owner co-operated with the investigation and that an early plea of guilty was entered. His Honour was satisfied that the failure did not occur as a result of defective equipment or inefficient cargo handling procedures, or from negligence or carelessness on the part of the ship’s Master or crew. (The cause of the discharge in that case was traced to a gasket which had become loose in the cam-locks which connected the hose which was used to transfer the cargo from the ship’s manifold to the pipeline).

59 His Honour imposed a fine of $40,000 on the owner. However, his Honour said that he came to the “firm conclusion” that the Master should obtain the benefit of the favourable exercise of the then s556A of the Crimes Act. His Honour noted:

“Although this Court has often suggested that it will be a fairly rare case for s556A to be applied to a person guilty of an environmental offence it has never foreclosed the availability of that judicial discretion, and has, on occasions, exercised it in favour of a defendant …

arising out of the same oil discharge incident

also

60 His Honour concluded that the punishment of the owner adequately vindicated the Act and its enforcement. In Bignold J’s opinion, to go further and punish the Master for the same oil discharge incident, would be excessive and involve the risk of a double penalty in respect of the single event. Nevertheless, his Honour did note that his conclusion in the case before him was not such that “there may not be cases in the future where punishment of both the master and ship owner is called for”. Bignold J said that it was simply the case that “the present circumstances do not require the conviction and punishment of the master in addition to the ship owner” (at 43).

61 In Morrison v Dilmun (supra) a reasonably small amount of oil was discharged into the waters of Botany Bay. The estimates in this case ranged between 40 and 50 litres - this is a slightly larger amount than the amount in the present case. The discharge occurred during loading operations and was caused when a gasket forming part of the loading equipment broke. A swift clean-up was effected and there was no actual environmental harm. The Master, who had retired after a long and unblemished career of service, was acting as a relief Master. Neither he nor the owner had knowledge of the inadequate and makeshift nature of the gasket.

62 Bignold J said that although he readily accepted that the owner had no actual prior knowledge, he was unable to excuse the owner given the strict liability imposed by the Act. In the circumstances of the case, he thought the owner should be punished and imposed a penalty of $30,000.

63 Nevertheless, he came to the conclusion that the Master should receive the benefit of s556A of the Crimes Act. As in Morrison v Peers, his Honour said that the conviction and fining of the owner “adequately vindicates the Act and the prosecutor’s enforcement of it and that to go further and to punish the Master for the same incident would involve an excessive sentencing response in the circumstances of this case” (at 260). However, his Honour went on to say:

Morrison v Peers

Crimes Act

ibid

64 In Morrison v Valle (supra) both the owner and the Master pleaded guilty to the charge. In that case a small amount of diesel oil escaped into the water during the loading of the diesel from a bunkering vessel; the amount was between 10 and 15 litres of diesel fuel. It was quickly contained by a boom and successfully cleaned up. The Master co-operated fully with the authorities, but was unable to say how the spillage had occurred other than it emanated from the diesel fuel tank within the ship via an air vent pipe leading from the tank and which extended about 70 centimetres above the deck level. It was said that there was a safety margin in the fuel tank of 3.3 cubic metres and that the spillage, accordingly, was not the result of overflowing the tank. (The immediate cause of the spillage was the clearing by a blast of air pressure from the vessel of the connecting fuel line between the ships, rather than any cause referrable to the equipment or the operation of the ship).

65 For both the owner and the Master, it was their first environmental offence. Both entered early guilty pleas. His Honour was of the opinion that notwithstanding the mitigating factors, it was appropriate that both the owner and the Master be fined. The penalty imposed upon the owner was $40,000 and, in the case of the Master, $20,000. In this case, Bignold J referred both to Morrison v Peers and Morrison v Dilmun and noted that in those cases he had discharged the Masters pursuant to s556A of the Crimes Act. In his Honour’s opinion:

with some want of operational care

66 Bignold J also considered the question in Morrison v Ausmarine (supra). In that case, the discharge of oil occurred during bunkering operations. The vessel was receiving diesel oil from road tankers while moored at Darling Harbour. Oil flowed out of the forward overflow pipe and through both the port and starboard drain holes and then into the water. The only explanation for the spillage was that the valve on No. 1 tank had been left open during the loading of the stern tanks after the forward fuel tanks had been filled. His Honour estimated that about 200 litres escaped onto the decks of the vessel and that a “somewhat smaller amount” found its way into the harbour.

67 Both the owner and the Master (who was also the Chief Engineer) pleaded guilty. In dealing with the benefits of pleading guilty for this offence his Honour said that the benefit:

“… is however not great, given the strict liability nature of the offences and the consequent high probability, all other things being equal, of conviction following from circumstances such as those attendant on this case.” (at 444)

68 His Honour noted that the amount of oil discharged was “significantly greater” than the amounts involved in the cases of Morrison v Valle, Morrison v Peers and Morrison v Dilmun. Bignold J said that the fact that the ship did not have all the standard safety systems cannot be seen as the mitigating factor in the context of remedial legislation such as that provided by the Act. His Honour fined the owner $80,000 and the Chief Engineer $40,000. His Honour said:

Crimes Act

want of operational care

Peers

Dilmun

Peers

69 His Honour referred to his judgment in Morrison v Dilmun at 260, quoted above, and added:

But each case depends intrinsically on its own facts, and this principle has a special application in the case of the exercise of discretion under s556A. Section 556A is an exceptional discretion and is very much the exception to the rules

Morrison v Valle

70 On the appeal of Morrison v Valle to this Court (Valle v Morrison (supra)) Allen J, with whom Gleeson CJ and Sully J concurred, expressed (at 11) his “entire agreement” with these observations of Bignold J in Morrison v Ausmarine.

71 In Morrison v Spliethoffs Bevrachtingscantoor BV (1996) 91 LGERA 318, the amount of oil discharged was small. This case was concerned with s8 of the Act. The owner and the Master relied upon the defence provided by s8(2)(b) with respect to “damage” to the “ship or its equipment”. They submitted that the oil leaked out of a faulty hatch which was damaged and would not close properly. His Honour concluded that that defence was not satisfied and found the offence proved against the owner and the Master.

72 Neither the owner nor the Master had had any prior convictions. The Master had only joined the ship in Brisbane. He knew little or nothing about the condition of the ship’s hatch machinery. A conviction and fine was imposed on the owners, but the Master was discharged pursuant to s556A.

73 In Morrison v Michel (Stein J, unreported, 14 June 1996), at least 100 litres of oil was discharged into Botany Bay due to a damaged stiffener of the tank bulkhead in one of the starboard tanks. Both the Master and owner pleaded guilty and had no prior record for an environmental offence. The Master had no knowledge of the damaged stiffener.

74 In relation to a submission that he apply s556A, Stein J said:

“I have considered the submission but conclude that it would be inappropriate, in the circumstances of this incident, to extend the benefit of the section to the defendant. I regard the offences to be of moderate seriousness … .”

75 In Morrison v Che Mat (1997) 95 LGERA 212, the vessel in question was at Port Botany loading heavy bunker fuel oil. There was an oil leak into the hold of the vessel due to a faulty manhole seal over one of the tanks. Heavy rainfall occurred at the relevant time and, as the hatch covers were opened to permit cargo operations, an amount of rain water entered the hold. The Chief Officer ordered that the hold bilge be pumped overboard. This occurred for about one hour. Sheahan J found that 150 litres of oil was discharged during this pumping operation. The owner, the Master and the Chief Officer pleaded guilty to offences under s8(1) of the Act. None had prior convictions.

76 His Honour found that the discharge of oil resulted from the order to pump given by the Chief Officer who was in effective command of the ship at the time. He gave that order without reference to the Master. His Honour said that if the Master had been asked, he would not have approved of the order. However, his Honour said that:

“While he must bear some responsibility, as the person who performed the relevant act, the real failure in this case is the failure to publish some policy manual, and to educate crew members in, and enforce, perfectly commendable policies such as forbidding bilge pumping in port.

Both the company and the Master have responsibilities in that regard.” (at 226)

77 Sheahan J said that he could see no grounds for applying s556A. The penalties imposed were $50,000 for the company, $10,000 for the Master and $1,000 for the Chief Officer.

78 In Morrison v Kingston Marine Corporation Inc (Pearlman J, 26 February 1997, unreported) between 100 and 150 litres of oil was discharged into White Bay. The incident occurred during the discharge of ballast from a heeling tank. There was a fracture in the bulkhead between the heeling tanks and an oil settling tank. During the emptying of the ballast, oil leaked into the healing tank and from there was pumped into the water.

79 Pearlman J found that there was no reason to suspect that the ballast system was contaminated. Her Honour said that although the spill was significant, it was contained and there was no actual environmental harm.

80 Both the owner of the vessel and the Master pleaded guilty. Neither had been involved in a pollution incident before. The owner was fined $50,000, however her Honour dismissed the Master’s charge under s556A. Her Honour said:

Morrison v Ausmarine

81 In Morrison v MAFI (Bignold J, 8 August 1997, unreported) coconut oil was discharged from a vessel into White Bay. Both the Master and the owner pleaded guilty to the offence. The coconut oil was being transferred from the vessel to road tankers when a rupture in the flexible rubber hose via which the coconut oil was being pumped to the tankers caused 500 litres to escape. The oil escaped initially onto the ship’s deck, however 300 litres spilled over the ship into the water via a starboard scupper plug which had been left open. No harm was caused.

82 In an unchallenged affidavit, the Master said that the transfer operation was being conducted by a stevedore employee, not by a member of the ship’s crew. The defence submitted that that fact, together with the fact that neither the Master nor the owner had a prior conviction and the circumstances of the case meant that no conviction should be recorded. Bignold J did not accept the Defendant’s submissions, noting that:

“… it is apparent that the spill may not have occurred if the scupper plug had not been left in the open position. This default is clearly the responsibility of the ship’s crew and ultimately of the Master.”

83 Bignold J went on to say:

“Clearly there was fault on the part of the ship’s crew in the failure to close the starboard scupper through which the escaped coconut oil was discharged from the ship into the Port Waters.”

“… the offence … involved an obvious element of carelessness by the ship’s crew in leaving open the starboard scupper.”

84 His Honour fined the owner $20,000 and the Master $10,000 for this discharge described by his Honour as “at the very low end of the spectrum of seriousness.”

85 In Leighton v Office of Marine Administration (supra) the owner, the Master and the Third Mate were charged. Oil escaped via a vent pipe from a water ballast tank. At the time the Third Mate was filling a heeling tank with ballast. The ultimate cause was due to the wasting, and presence of a hole, in a ballast pipe. The quantity discharged was between 1.5 and 2 tonnes.

86 At trial, Bignold J had found the charges made out. His Honour refused to apply s556A and sentenced all the defendants. Although the Master had had an unblemished prior record, he was fined $10,000. It was from this that the Master appealed.

87 Ireland J, a judge with considerable personal knowledge of the merchant marine and with whom Gleeson CJ and Bruce J agreed, said:

“With respect to the appellant, it was submitted that having regard to his prior unblemished seafaring record throughout his career, he also should not be the subject of penalty. …

Notwithstanding the mitigating factors to which he made reference, his Honour was firmly of the opinion that the offences charged in this case were so serious and the circumstances of their commission so grave that convictions in respect of the offences committed by both the owner and the Master were undeniably justified.”

88 His Honour discussed the relevant case law and concluded:

Crimes Act

89 In Filipowski v Ryong [1998] NSWLEC 63, 500 litres of soya bean oil was discharged into White Bay. About 98 percent of the soya bean oil was recovered. No environmental harm ensued from the discharge and Sheahan J placed the discharge in a “less serious” category of case. The owner was fined $50,000 and the Master $25,000. His Honour said that the two Defendants were “not entitled to the benefit of s556A”. It should be noted, however, in this case that the Defendants, the owner and the Master, did not respond to the service of process and the proceedings were conducted ex parte.

90 Filipowski v De Ocampo [1998] NSWLEC 119, involved a spill of fuel oil from a vessel, the Stolte Otome, berthed at Kurnell. The Stolte Otome was bunkering 60 tonnes of diesel bunkers. Prior to the load being finished, one of the bunkers overflowed the ship’s starboard diesel tank. The Chief Engineer asserted that the ship had already received 60 tonnes, but the tank gauges on the delivery tank showed that only 50.5 tonnes had been delivered. Most of the oil that had overflowed onto the deck was mopped up, however, about 20-30 litres of oil overflowed the side of the ship and spilled into the waters of Botany Bay. After the immediate clean up operation, the oil was dispersed; there was no evidence of any oil on the water (or of any environmental harm) later that day.

91 Lloyd J found the reason for the discharge was that either the crew did not adequately monitor the rising level of fuel in the recipient tank, or they did not direct the shore base loading personnel to stop the delivery of fuel oil in sufficient time to avoid the spillage. His Honour said that the responsibility for the spill “lies on those receiving the fuel oil to ensure that the receiving tank does not overflow” (at [25]). Both the owner and the Master pleaded guilty; the Chief Engineer did not. However, since the Chief Engineer admitted that he was on duty supervising the bunkering operations at the time, his Honour was satisfied that the Chief Engineer was a person whose act “caused the discharge” (s8(1)) and was also guilty of the offence.

92 Lloyd J noted that the owner had not previously been charged with a pollution offence. His Honour compared the penalties imposed on owners in relation to similar cases “of a minor oil spill” and said that having regard to the circumstances of the case, it should be fined $30,000.

93 However, in relation to the Master, his Honour noted that the Master “was not on duty when the incident which gave rise to the present charges occurred. He had apparently left the chief engineer in charge of the bunkering operation” (at [26]). When the alarm sounded the Master proceeded to the deck and took command of the crew in relation to the clean up operation. The Master had been at sea for 18 years and never previously been involved in an oil spill. Lloyd J said:

“In light of all these facts, to go further and punish the master for the same oil discharge incident, where the mere fact that the basis for his liability under s8(1) of the Act arises by dint of his status would, in this instance, be an excessive response.

Crimes Act

Morrison v Peers

Morrison v Dilmun Navigation

94 The Chief Engineer, whom his Honour found was the person whose act caused the discharge, was fined $10,000.

95 In Filipowski v Esar Bunkering Group Ltd (Lloyd J, 17 November 1998, unreported) both the Master and the owner pleaded guilty to an offence under s8(1) of the Act. The circumstances of the case were that the Esar Sydney, a bunkering barge, was berthed unattended at Brotherson Dock at Port Botany. While berthed, there was a discharge of oil into the waters from the vessel. This happened on 26 January 1997. The discharge was not discovered until 29 January 1997. At that time, it was cleaned up satisfactorily and there was no evidence of any environmental damage as a consequence of the incident.

96 The discharge occurred because one of the scupper plugs had been left in the inboard position. Rain which fell while the vessel was unattended flowed into the slop tank instead of overboard. The slop tank filled and the bunded area of the vessel overflowed and oily water in turn overflowed onto the waters at the dock. It was estimated that the quantity of oil spilled was small and that the discharge was a light sheen covering less than 100 square metres. There was no evidence of any environmental damage.

97 At the time of the incident, the owner had a set of standing operation instructions (“marine standing orders”) which contained maintenance and operating instructions of a general nature. They did not refer specifically to the operation of scupper valves. Nevertheless, it was asserted by the owner’s general manager that written instructions were given to all crew specifically instructing them that the scupper valves were to be left in the overboard position when the vessel was unmanned and in the slop tank position when work was being carried out.

98 After the incident, the scupper valves were reconditioned and a sign was placed adjacent to each stating that they were always to be locked in the overboard position when the vessel was unattended.

99 The owner had a prior conviction. (The circumstances of that previous conviction were similar in that a scupper valve had been left in an inboard position which caused an overflow of oily water into Berry’s Bay.) His Honour said that whilst the maximum penalty should be reserved for the worse case of offence, “a repeat offender should not obtain the leniency which might otherwise be afforded even in a case involving a small discharge without any environmental damage” (at [13]). His Honour fined the owner $50,000.

100 The factors in mitigation argued in respect of the Master were that it was his first offence, the incident rose out of an “inadvertent incident” and that there was no evidence that the Master was personally aware that the valve was in the wrong position. Lloyd J referred to the passage of Allen J in Vale v Morrison referred to above and which was also quoted by Talbot J in this case. His Honour then said:

Vale

101 The Master was fined $20,000.

102 Filipowski v Terminals Pty Ltd (1999) 105 LGERA 165 was a decision of Pearlman J. Nonyl phenol was discharged into Botany Bay during the unloading of a vessel. A stainless steel ball valve on the pressure relief line had been left open. The amount discharged into the water was less than 40 litres.

103 The owner and an employee were charged; both pleaded guilty. In relation to the s556A argument, her Honour said:

Morrison v Peers

As to Mr Ethell, I take note that, in some marine pollution cases, the master of the vessel has sometimes been given the benefit of s556A. But this is not a case of indirect responsibility such as may pertain in the case of a master. Mr Ethell was the only person from Terminals on the wharf platform at the time of the spill, and he was directly responsible for the operation of the apparatus from which the discharge emanated. I can discern no extenuating circumstances which would justify dismissal of the charges against him.” (at [73]-[74])

104 The case on which the Appellant placed particular weight was the decision of Talbot J in Fratelli D’Amato (supra), that case concerned a very large spill of oil which occurred into the waters of Gore Bay on 3 August 1999. That discharge took place while cargo was being unloaded to the Shell Oil Terminal in Gore Bay. It went unobserved for at least 25 minutes and 294,000 litres of Murban oil escaped into the Bay. The ship owner, the Master and the Chief Officer were charged. All pleaded guilty.

105 The spill occurred due to the failure to carry out proper tests on particular valves, sea chest valves, on the sea suction line. The sea suction line permits water to be pumped into the cargo system, for example, to provide extra ballast. In this operation, it was a supplementary line to the cargo pipeline system and was being used as a cargo cross-over line.

106 It was the failure of the Chief Officer to carry out a proper and adequate test of the sea chest valves before engaging in the sea cross-over line that allowed the oil to be discharged.

107 Talbot J, in relation to the owner, said:

“The Court recognises that a company must rely almost entirely upon the capability and diligence of its employees. In the case of a shipping company, the extent of delegation and trust is essentially remote in the sense that direct control over every day actions and decisions is not possible. That is not to say, however, that the company is entitled to abdicate its responsibility so far as it extends, particularly in relation to the provision and maintenance of appropriate directions in regard to protocol and procedure.” (at [115])

108 His Honour said that at all relevant times the Master (the Captain), the Chief Officer and other crew members were severally responsible for the management and functions of the ship. In particular, it was the responsibility of the Master to oversee the total operation. However, the Chief Officer:

“…had direct and immediate responsibility for the management of cargo handling, including the operation or decisions relating to the use of the various lines and valves within the ship.

The system broke down when procedures that fell within the ambit of the Chief Officer were not followed. The Court is satisfied that the Chief Officer was performing a function he was employed and authorised by the agent of the owner to carry out. The failure to perform that function in a proper manner is therefore attributable to the owner as the ultimate employer … .” (at [122]-[123])

109 The owner was fined $510,000. As to the Chief Officer, he acknowledged that although he reported directly to the Master on a day-to-day basis, and the Master is in overall charge of the ship, the Master has no practical role in pumping and transfer operations. The responsibility for opening and closing the valves rested with either the Chief Officer or the Chief Mate. Talbot J said that though he had acknowledged his error and pleaded guilty, he was directly responsible and accordingly he was fined $110,000.

110 According to Talbot J, the situation of the Master was different. He was not directly involved in the process of unloading cargo, although he was monitoring the activity on board at the time. The Court accepted that he had no direct responsibility for the operation of the sea valve. His Honour said:

“The most that can be said against the Master of the ship is that he had a responsibility to ensure that safety procedures were followed in all respects of the tanker’s operation. …

The prosecutor asserts that the Captain is nevertheless responsible to see that the Chief Officer carries out his tasks correctly, including the necessary tests of the sea chest valves. …

However, the Captain of the ship is properly to be regarded as the direct and immediate representative of the owner while the ship is under his command. To punish the Master or Captain of the ship personally for an occurrence over which he had no personal control, except in a detached overall sense where the owner has already been punished on the basis of its vicarious responsibility and the person directly responsible will also be punished, would, in my opinion be an excessive and unreasonable punishment.” (at [134], [135] and [137])

111 It was this last passage which the Appellant asked Talbot J to apply in the present case. In the judgment of Talbot J in this case he distinguished his earlier reasoning by saying that in Fratelli D’Amato both the owner and the person actually responsible were convicted and heavy penalties were imposed on them.

112 In Fratelli D’Amato, his Honour concluded with regard to the Master that having regard to the whole of the circumstances surrounding the event and its cause “and after taking into account the respective duties of the Master of the ship and the Chief Officer” he was satisfied that it would not be appropriate to convict the Master and that the offence, while proved, should be dismissed under s556A of the Crimes Act.

113 My review of the authorities indicates that the Court has consistently stated that there is no practice for a “blameless” Master to be discharged without conviction, whenever the company is convicted (Morrison v Dilmun at 260; Morrison v Ausmarine at 447; Valle v Morrison at 11). Each case requires the exercise of a discretion on the basis of the whole of the circumstances.

114 No pattern of sentencing has been shown to exist with which the judgment of Talbot J in this case can be said to be inconsistent in any relevant sense.

115 The authorities indicate that the Master is not discharged under s10 in cases where the discharge has been caused by a failure in the operations on board, save where another senior employee with direct responsibility has been convicted.

116 The present case is distinguishable from those where the discretion has been exercised in favour of a Master. In Morrison v Peers and Morrison v Dilmun the discharge was not caused by any error on the part of the crew - in the first case the gasket became loose, and in the second a gasket blew. In Morrison v Spliethoffs the Master had joined the ship very recently and knew little about the ship’s machinery which proved defective. In Morrison v Kingston Marine Pearlman J also relied on the absence of any reason to suspect the defect in the equipment.

117 As noted above, the Appellant placed particular reliance on the decision in Fratelli D’Amato. As to his Honour’s way of distinguishing the present case, (namely that in Fratelli D’Amato both the owner and the person actually responsible were convicted and heavy penalties imposed on them), the Appellant submitted:

“It is odd that Captain Thorneloe has been convicted and fined because the prosecutor failed to prosecute the person really responsible.”

118 In Fratelli D’Amato, the Chief Officer was prosecuted on a different basis from the owner and Master in that case, or in this. The owner and Master were not accused of culpable conduct in either case. The Chief Officer in Fratelli D’Amato was, however, charged with “causing the discharge”. In the present case the discharge was the combined effect of two acts: the negligence of the Chief Officer, which caused the release of oil onto the deck of the ship, and the negligence of an unidentified seaman, which caused the discharge into the harbour.

119 By s26 of the Act, s27 applies to a discharge “into State waters”. The liability of the Chief Officer on the basis of “causing the discharge” was at best problematic. His act did not directly lead to a discharge into State waters. The seaman was not identified. I do not suggest that these facts could not constitute an offence on the part of the Chief Officer. However, it is understandable why he was not charged.

120 In the present case, Talbot J expressly distinguished his own decision in Fratelli D’Amato on the basis that in that case the person who was actually responsible for the discharge was convicted and charged. This was also regarded as a relevant factor by Lloyd J in Filipowski v De Ocampo.

121 In Morrison v Che Mat Sheahan J found that the liability of the Chief Officer was not sufficient to discharge the Master in that case. Nor was the liability of the Third Mate in Leighton v Office of Marine Administration. Each case will turn on its facts. However, in my opinion Talbot J was entitled to distinguish his own earlier decision on the basis that a person on board the ship, with more direct hands-on responsibility than the Master, had been convicted in that case.

122 No relevant inconsistency has arisen. This ground of appeal should be dismissed.

The Second Submission

123 His Honour’s reference to both the small amount actually discharged and the “potential for significant harm” was made in the paragraph of his reasons where his Honour was dealing with s10. By subs 10(3) the Court is obliged to take into account the “triviality of the offence”, “the extenuating circumstances” and any “other matter”. The issue is whether risk of harm, being harm which does not eventuate, is a relevant consideration in the exercise of the statutory discretion to make an order that “without proceeding to conviction … the relevant charge be dismissed”.

124 The “potential for harm” arose because a substantial quantity of oil had been discharged onto the deck but which had not gone overboard. This is the ‘potentiality’ to which I understand his Honour was referring in par [33] of his reasons as quoted above.

125 It is often, perhaps usually, relevant to sentencing to take into account the potential harm of a crime, a potential which has not occurred or been averted. Relevance will, however, depend on the nature of the offence.

126 For example, in the case of an armed robbery, it is relevant that a firearm was in fact loaded, even though the potential harm did not eventuate. In the case of importation or supply of drugs, quantity is material because of the potential harm to the community if the drugs had in fact been distributed. (See e.g. R v Wong (1999) 48 NSWLR 340 at [130]).

127 The general principle is that sentence must be “proportionate to the gravity of the crime considered in the light of its objective circumstances” (Hoare v The Queen (1989) 169 CLR 348 at 354). The question whether the “objective circumstances” are limited to actual consequences or extend to potential consequences, is surprisingly free of direct authority.

128 In Veen v The Queen (No 2) (1987-1988) 164 CLR 465 at 473 the High Court emphasised that the protection of society is a relevant consideration in the exercise of the sentencing discretion:

“It is one thing to say that the principle of proportionality precludes the imposition of a sentence extended beyond what is appropriate to the crime merely to protect society; it is another thing to say that the protection of society is not a material factor in fixing an appropriate sentence. The distinction in principle is clear between an extension merely by way of preventative detention, which is impermissible, and an exercise of the sentencing discretion having regard to the protection of society among other factors, which is permissible.”

129 With respect to most criminal offences, the protection of society is served by taking into account the threat to society even if, in the particular circumstances, the threat has not eventuated.

130 The potential for harm has frequently been taken into account in the context of offences for which mens rea is a requirement. The potential for harm often affects the individual culpability of the offender. Whether a gun is loaded during an armed robbery is an example of this proposition.

131 Text writers support the relevance of potential harm in such a context. An example is Fox & Freiberg: “Sentencing: State and Federal Law in Victoria” (2nd ed) at 225-226:

“The sentencer is entitled to look at the potential or actual consequences of the criminal conduct even if there is a difference between what the accused intended to occur, or took the risk of occurring and what in fact happened.”

132 There will, however, be statutory offences for which the potential for harm will not be a relevant consideration. The issue is one of statutory construction. In the case of s27 of the Marine Pollution Act, two matters are particularly significant. First, it is an offence of strict liability. Secondly, it is an offence which turns on a particular result the actual discharge of oil into waters. (For present purposes the distinction between “strict” and “absolute” liability is not material. See Mosley “Oil Spills - State and Federal Legislative Conundrums” (1998) 15 EPLJ 212).

133 For some purposes it has proven useful to distinguish cases which focus on the conduct of an alleged offender, from cases in which that conduct must be followed by some specified consequence. The former have been referred to as “conduct offences” and the latter as “result offences”. This form of differentiation is sometimes of significance for purposes of identifying the requisite territorial connection between the offence and the alleged infringement. (See e.g. Treacyv Director of Public Prosecutions [1971] AC 537 at 560; Director of Public Prosecutions v Stonehouse [1978] AC 55 at 65; Thompson v The Queen (1988-1989) 169 CLR 1 at 24).

134 Section 16 of the Clean Waters Act 1970 which provides that “A person shall not pollute any waters” has been described as a result offence by Gleeson CJ in Brownlie v State Pollution Control Commission (1992) 27 NSWLR 78 at 83:

Clean Waters Act

Environmental Protection Authority v Bathurst City Council

McConnell Dowell Constructors (Aust) Pty Ltd v Environmental Protection Authority

135 In the context of some environmental offences the effect of pollution identifies a particular result or consequence which is an essential ingredient of the offence. (See McConnell Dowell (supra) [47] and [49] and Taylor v Environment Protection Authority (2000) 50 NSWLR 48 at [23]).

136 In Hunter Water Board v State Rail Authority of New South Wales [No 2] (1992) 75 LGRA 22 at 23 Stein JA said:

“It is accepted by the prosecution that there was very little environmental harm as a result of the spill. However, on behalf of the Board, Ms Murrell relies on the potential harm - which was serious - and points to the good fortune of the community, and the defendant, that serious environmental damage was avoided in great part by reason of favourable tides.”

137 It appears that Stein J regarded “potential harm” as relevant to penalty. On appeal to this Court, State Rail Authority of New South Wales v Hunter Water Board (1992) 28 NSWLR 721 at 726 Gleeson CJ, with whom Cripps JA and Slattery AJ agreed, said:

“There was no error of fact or principle in his Honour’s approach to the discretionary issue of penalty …”

138 Gleeson CJ made no express reference to the way Stein J took into account “potential harm”. Nor does it appear from the report of the appeal that there was any suggestion that his Honour’s discretion miscarried by having done so.

139 Section 16(1) of the Clean Water Act 1970 created the offence in direct terms: “A person shall not pollute waters”. However, by s16(1)(a)(ii) a person is deemed to pollute waters if matter is placed where “it is likely to fall, descend, be washed, be blown or percolate into any waters etc.” Furthermore, by s16(c) of the Clean Waters Act contravention of s16 constitutes an offence against the Environmental Offences and Penalties Act 1989 (the “EOP Act”). By s9 of the EOP Act a court is required to take into consideration on penalty “the extent of the harm caused or likely to be caused to the environment”.

140 The word “likely” is protean. (See Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council (No 2) [2001] NSWCA 28 at [28]-[57]). If it means “real chance or possibility”, then it encompasses “potential for harm”. If it means “better than 50-50 chance”, it probably does not. This issue was not raised in this Court in State Rail Authority of NSW v Hunter Water Board. The EOP Act does not apply to contraventions of the Marine Pollution Act. It is not necessary to decide it in this case.

141 By s15 of the Occupational Health and Safety Act 1983:

“15(1) Every employer shall ensure the health, safety and welfare at work of all the employer’s employees.”

142 By sub15(2) an employer is deemed to contravene the subsection if, inter alia, it fails to provide or maintain plant and systems which are “without risks to health”, or fails to make arrangement “for ensuring safety and absence of risks to health …” with respect to certain activities or fails to provide a working environment “that is safe and is without risks to health and adequate as regards facilities for their welfare at work”.

143 By reason of the extended application of the statutory prohibition to various kinds of “risks”, the potential for harm becomes a material consideration and has been so regarded in the case law. (See e.g. WorkCover Authority of New South Wales v Ecolab Pty Ltd (1999) 90 IR 413 at 429-431; Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (1999) 90 IR 464 at 476; Tyler v Sydney Electricity (1993) 47 IR 1 at 5; Wong v Melinda Group Pty Ltd (1998) 82 IR 118 at 131; WorkCover Authority of New South Wales v Fernz Construction Materials Ltd (No 2) (2000) 100 IR 23 at 32-33).

144 Furthermore, s15 is not a result offence. Its focus is on a state or condition rather than a result or consequences. The potentiality for harm arises by reason of the existence of the state or condition.

145 Unlike, s16(1) of the Clean Water Act and s15(1) of the Occupational Health and Safety Act, nothing in s27 of the Marine Pollution Act expressly extends the scope of the statutory prohibition beyond a specific consequence to encompass the creation of a potentiality - whether probability or possibility - for that consequence to occur.

146 In my opinion, a sentence for an offence under s27 of the Marine Pollution Act may not take into account the potential for the result to occur, the actual occurrence of which is an essential ingredient of the offence. To take potential for harm into account would be to punish the offender for conduct which would constitute a difference offence for sentencing purposes, i.e. a larger “discharge”.

147 This analysis is analogous to, but not dependent on, the principle reflected in the High Court decision in The Queen v De Simoni (1980-1981) 147 CLR 383. In that case the High Court determined that it was not appropriate on sentence to take into account circumstances of aggravation which would have warranted a conviction for a more serious offence. What the High Court was considering was an offence created by a difference section of the Act, being an aggravated version of the offence with which the accused was charged.

148 In a context where an actual result is an essential ingredient of the offence, taking into account the potential for greater harm that may have, but did not, occur, also punishes the accused for an offence which he, she or it did not commit.

149 The present case turns on s10 of the Sentencing Act. By subs10(3)(b), (c) and (d) the Court is required to have regard to the “triviality” and “extenuating circumstances” of the offence. In both cases the restriction imposed by the word “offence”, in the case of s27 of the Marine Pollution Act, focuses on an actual discharge. Issues of potentiality do not arise.

150 The submission that Talbot J took into account irrelevant considerations, turns, in my opinion, on whether potential harm is a “proper matter” for a sentencing judge to “consider” when exercising the discretion to order that “the relevant charge be dismissed”. As the reference to “relevant charge” makes clear, a primary consideration in determining what it is “proper” to “consider” will be the essential elements of the offence. This will vary from case to case.

151 The discretion conferred by s10 is wide-ranging. There is no warrant for treating the scope and range of matters which it is “proper” for a sentencing judge to take into account in a narrow way. Nevertheless, it is a discretion which must be exercised judicially. The identification of relevant considerations turns on the scope and purpose of s10.

152 As Windeyer J said in the context of concluding that the then equivalent of s10 in South Australia applies to the offence there under consideration:

Cobiac v Liddy

153 The last sentence of this passage was quoted with approval by Gleeson CJ when he said in R v Ingrassia (1997) 41 NSWLR 447 at 449:

“The essence of s556A is that it empowers a court which considers that a charge has been proved, in certain circumstances, to take certain steps ‘without proceeding to conviction’. The legal and social consequences of being convicted of an offence often extend beyond any penalty imposed by a court.”

154 Notwithstanding, the width of the ameliorative purpose of s10, it does, in terms, direct attention to “the relevant charge”. The scope and purpose of s10 will, to some extent at least, vary from one offence to another.

155 I have not found it easy to determine whether a factor which is not relevant on sentencing for the charge, can nevertheless be a “proper” matter to be considered when exercising the discretion under s10. On balance, I have concluded that s10 does have a scope and purpose which extends beyond the elements of the offence of the “relevant charge”. I refer in particular to the effects of the act of recording a conviction, to which Gleeson CJ referred in Ingrassia.

156 The risk to which society was subject is, in my opinion, a relevant and, accordingly, a “proper” consideration to be taken into account in deciding whether to dismiss proceedings without proceeding to a conviction. This is so even in the context of a strict liability result offence like s27.

157 The offence in this case would bear a different complexion if the small amount of oil actually discharged into the water, being 10-30 litres, had been the only oil negligently released onto the deck of the ship. The significance of the conduct for which the Master was held responsible would be lower. The conduct would be properly regarded as less serious.

158 In my opinion, when Talbot J referred to, and took into account, the potentiality for harm, he was “having regard to” a consideration which it was open to him to regard as “proper to consider”. The second submission should be rejected.

The Third Submission

159 This rolled up submission, in essence, is that the proper exercise of discretion in all of the circumstances ought to have led the Court to exercise the statutory power under s10(1). A number of specific propositions were advanced in support of this general submission. One is of particular significance. The Appellant submitted that Talbot J failed to give any, or alternatively, adequate consideration to what the Appellant could have done to avert the discharge.

160 The various elements, to all of which his Honour referred, pertinent to the exercise of the s10(1) power, included the small actual discharge, the lack of blame on the part of the Master, his good character and lack of prior convictions. All of these matters are, of course, entitled to weight and his Honour referred to them. The balancing of such considerations is a process on which reasonable minds may differ. The essence of the Appellant’s general case was that the result itself shows that his Honour must have given inappropriate weight, or failed to give appropriate weight, to a relevant matter.

161 The submissions emphasised the fact that the company was convicted. The Appellant asked rhetorically:

“… what is the utility in convicting and punishing a blameless Master on precisely the same facts for which the corporate owner was also convicted and punished.”

162 This submission fails to acknowledge the distinctive roles of the owner and the Master with respect to the operation of ships. In Federal Steam Navigation Co Ltd v Department of Trade and Industry [1974] 1 WLR 505 Lord Salmon said at 526:

“The object of making the owners liable is to discourage them from taking a tolerant attitude towards a master who causes pollution. The object of making the master personally liable is to ensure that he will do everything he can to avoid pollution.”

163 Some of the case law in the Land and Environment Court refers to a “double penalty”. The origins of that phrase is the judgment of Lord Morris of Borth-y-Gest in Federal Steam Navigation where his Lordship said at 516-517:

“… there is some force in the contention that if both owner and master are liable to be convicted there could be the risk of a double penalty in respect of the one event.”

164 When, as in the case of s27 of the Marine Pollution Act, the Parliament has expressly provided that both the owner and Master may be held liable for the same pollution, there is no reason to invoke a concept like “double penalty” as if it restricted the sentencing court in any way. In Federal Steam Navigation Lord Morris of Borth-y-Gest was in dissent on this very point. He concluded that under the statute there under consideration, either the owner or the Master - but not both - could be convicted. The majority decided otherwise. The identification by Lord Salmon of the distinct bases for responsibility of the owner and the Master represents the majority view. The idea of “double penalty” has no role to play in this context.

165 In Hunter Water Board v State Rail Authority of New South Wales [No 2] (supra) at 23, Stein J said:

Clean Waters Act

166 On appeal to this Court, Gleeson CJ, with whom Cripps JA and Slattery AJ agreed, said at 726G that there was no error in his Honour’s approach to penalty.

167 The formulation “a rare case”, or equivalent words, has been applied in the Land and Environment Court a number of times. (See e.g. Morrison v Peters (supra) at 42; Morrison v Kingston Marine (supra); Clarke v Environment Protection Commission (1997) 98 LGERA 114 at 116; Filipowski v Terminals Pty Ltd (supra) at [73]).

168 Similar issues have arisen under s15 of the Occupational Health and Safety Act which I have set out above. In Schultz v Tamworth City Council (1995) 58 IR 221 at 229, Fisher CJ said:

Crimes Act

169 This formulation has frequently been used in the Industrial Relations Commission. See the joint judgment of Wright, Walton and Hungerford JJ in WorkCover Authority of New South Wales v Profab Industries Pty Ltd (2000) 49 NSWLR 700 at [19], [21], [26].

170 I would reject the Appellant’s general submission that the result itself suggests legal error. However, one of the Appellant’s specific submissions requires further consideration. As noted above, the Appellant challenged whether Talbot J had given any, or, alternatively, adequate consideration to the fact, for which the Appellant contended, that no reasonable action on the part of the Master could have averted the incident.

171 Even in the case of an offence of strict liability, no public purpose is served by recording a conviction or imposing a penalty in circumstances where the relevant accused could not, as a matter of practical reality, have done anything to ensure that the offence or, in the case of a result offence, the adverse consequences of the conduct, did not occur.

172 Lord Scarman expressed the purpose of imposing strict liability in Gammon (Hong Kong) Ltd v Attorney General of Hong Kong [1985] AC 1 at 14:

“… the creation of strict liability will be effective to promote the objects of the statute by encouraging greater vigilance to prevent the commission of the prohibited act.”

173 To similar effect are the observations of Lord Evershed in Lim Chin Aik v The Queen [1963] AC 161 at 174:

“It is pertinent also to inquire whether putting the defendant under strict liability will assist in the performance of the regulations. That means there must be something he can do, directly or indirectly, by supervision or inspection, by improvement of his business methods or by exhorting those whom he may be expected to influence or control, which will promote the observance of the regulations. Unless this is so, there is no reason in penalising him, and it cannot be inferred that the legislature imposed strict liability merely in order to find a luckless victim.”

174 In He Kaw Teh v The Queen (1984-1985) 157 CLR 523, immediately prior to quoting this passage from Lim Chin Aik, Brennan J said:

“It requires clear language before it can be said that a statute provides for a person to do or to abstain from doing something at his peril and to make him criminally liable if his conduct turns out to be prohibited because of circumstances that that person did not know or because of results that he could not foresee. However grave the mischief at which a statute is aimed may be, the presumption is that the statute does not impose criminal liability without mens rea unless the purpose of the statute is not merely to deter a person from engaging in prohibited conduct but to compel him to take preventive measures to avoid the possibility that, without deliberate conduct on his part, the external elements of the offence might occur. A statute is not so construed unless effective precautions can be taken to avoid the possibility of the occurrence of the external elements of the offence.”

175 Brennan J, Lord Evershed and Lord Scarman were concerned with determining whether a particular offence required mens rea. However their Honours’ reasoning suggests that in the case of any criminal offence the Parliament will be strongly presumed to be concerned to impose liability only in the case of events that could have been avoided by some action on the part of the accused.

176 As Lord Salmon said in the Federal Steam Navigation case, immediately after the passage quoted above, at 526:

“I can see nothing unfair in making the master guilty for any contravention of section 5. If the vessel is not fitted with the proper equipment and the master knows it, he should refuse to put to sea until the vessel is properly equipped. If he puts to sea when there has been some contravention of section 5 of which he could not have known, no court, were he to be prosecuted, would do more than impose a nominal fine, or give him an absolute discharge.”

177 Although Lord Salmon understated the responsibility of the owner - which extends to establishing systems, guidelines and practices - nevertheless, there is a difference between the absentee character of ownership and the direct involvement in operations of the Master. Both share responsibilities. The object of ensuring greater vigilance in the context of strict liability is served by imposing as the Parliament has done, coordinate, and not merely derivative, obligations on both.

178 It is, in my opinion, relevant to the exercise of the discretion under s10 of the Sentencing Act, in the context of a strict liability offence, to consider what the applicant for the benefit of s10 could have done to avert the event that has occurred. While questions of weight are always for the sentencing judge, it is unlikely that this consideration will be given determinative weight in the case of a serious offence or a repeat offender. Where, as here, there was a comparatively minor pollution by a first offender, this consideration is entitled to weight.

179 In par [33] of his Reasons, where Talbot J considered s10, there is no reference to anything the Master could have done. Nor is there any such reference elsewhere in the judgment. To repeat part of par [33], the crucial step in his Honour’s reasoning appears to be:

“… the potential for significant harm arose as a consequence of two established serious lapses in proper procedure. The Master must ultimately bear a responsibility for these breaches as the person in overall charge of the ship’s operations.”

180 His Honour was referring to “responsibility” for the two operation breaches which combined to cause the discharge: the Chief Officer’s error with the gauge and the seaman’s failure to properly tighten the scupper. His Honour described these as “two established serious lapses in proper procedure”.

181 Nothing in his Honour’s formulation “The Master must ultimately bear a responsibility …” suggests that in determining the application of s10, his Honour took into account what, if anything, the Master could have done to prevent the discharge. I have come to the conclusion that this was a relevant consideration to which his Honour failed to have regard.

182 His Honour appears to have applied a practice that has developed in the Land and Environment Court to hold the Master responsible for discharges occasioned by some defect in operations, save where the senior officer directly responsible is convicted. That will be an appropriate outcome in many, if not most cases. The approach is not applicable in all cases.

183 I have concluded that the exercise of the s10 discretion miscarried by reason of his Honour’s failure to take into account a relevant consideration. It falls to this Court to exercise the discretion afresh. In this respect I agree with Hulme J and the reasons his Honour gives.

184 The circumstances, particularly the unblemished record of the Appellant and the small size of the discharge indicate that this is an appropriate case for the exercise of the discretion. Consideration of what the Master could have done to avert the discharge supports this conclusion.

185 In the case of the failure to tighten the scuppers after the rain, this was an operational breach. However, unlike the cases of Morrison v MAFI and Filipowski v Esar Bunkering Group, the scuppers were not ignored completely - there was an inadequate attempt to tighten them. With respect to the Nakakita gauge, the Chief Officer did not merely know that such gauges sometimes stick. He was expressly told that this particular gauge was sticking on that night. He neglected to take the simple remedial step of flicking the gauge.

186 No doubt some further guidance or training might have made a difference in each case, but it is difficult to identify any effective step which the Master could have taken that does not require virtual perfection.

187 I would uphold this submission.

The Fourth Submission

188 I have summarised his Honour’s reasons above. His Honour stated that the Appellant must “bear a responsibility for the breaches as the person in overall charge of the ship’s operations”. The breaches had been identified earlier in the reasons, namely the combined effect of the sticking Nakakita gauge and the failure to properly tighten the scupper plate.

189 Both these acts were done by persons under the Appellant’s overall control and for whom it was appropriate the Appellant bear responsibility, subject to the considerations I have outlined in dealing with the third submission. In my opinion his Honour’s express reference to “bearing responsibility” for breaches which his Honour had earlier identified, constituted an adequate statement of reasons.

190 I would reject this submission.

The Fifth Submission

191 This was barely pressed. It was submitted that the public policy underlying the enactment of the Marine Pollution Act was adequately met by conviction of the owner. As outlined above, the Master has distinctive obligations. Indeed, these are emphasised by the statutory scheme which separately refers to owners and masters.

192 I would reject this submission.

Conclusion

193 The orders I propose are:

1. Appeal allowed.

2. Order of the Land and Environment Court convicting and fining the Appellant set aside.

3. The offence in proceedings No. 50039 of 2000 in the Land and Environment Court is proved but no conviction is recorded and the proceedings are dismissed.

4. Costs order made by Talbot J in proceedings No. 50039 of 2000 in the Land and Environment Court against the Appellant to stand.

194 HULME J: In this matter I have had the advantage of reading, in draft form, the Reasons for Judgment of the Chief Justice.

195 I agree with his Honour’s conclusions in respect of the first, fourth and fifth grounds of appeal and with his Honour’s reasons for those conclusions.

196 Turning to the second ground of appeal, substantially for the reasons given by his Honour, I am of the view that in the determination of a sentence for an offence under s27 of the Marine Pollution Act, it is not permissible to take into account the potential for a discharge of a greater quantity than in fact occurred or of the potential for damage of such a larger discharge. That is not to say that the potential for harm of the actual discharge the subject of the offence is not relevant, even if greater than the harm that did occur. Thus I would respectfully agree with the approach of Stein J in Hunter Water Board v SRA (No 2) (1992) 75 LGRA 22 at 23 that where harm is less than it might otherwise have been by reason of fortuitous events for which a Defendant can claim no credit a Court is entitled to take into account against a Defendant what might have happened as a result of the discharge which constitutes the offence. To go this far accords with the general tenor of authority which permits weight to be given to the possible consequences of a Defendant’s conduct in the course of commission of a crime.

197 In relation to this second ground, there remains the question whether in any consideration of s10 of the Crimes (Sentencing Procedure) Act, 1999, the potential for harm of a (potential) greater discharge which did not occur may be taken into account as an “other matter that the court thinks proper to consider.”

198 In empowering a court to either dismiss a charge or discharge on a good behaviour bond an offender who is guilty, s10 permits the adoption of a more lenient approach than merited by the strict application of the relevant law against which a defendant has offended. However it is clear that it is not only mitigating circumstances to which regard may be had. Thus while the matters referred to in sub-paragraphs (b) and (c) of sub-section 3 are of that nature, those in sub-paragraph (a) are not necessarily so.

199 The express reference in sub-paragraph (c) to only those circumstances which are “extenuating” provides some ground for the view that “any other matter” in sub-paragraph (d) should not be regarded as extending to circumstances which are of an aggravating kind. On the other hand any judgment of whether the circumstances in which an offence is committed are extenuating of necessity requires attention to all such circumstances including those which, in isolation, might be regarded as of an aggravating nature. It would be unreal to suggest that such matters could be taken into account in determining whether an offence is committed in extenuating circumstances but for no wider purpose and thus it seems to me that “any other matter” in sub-paragraph (d) includes all the circumstances of an offence.

200 In the circumstances of this case that includes the discharge of fuel onto the deck of the ship with the potential consequences associated with that event. I agree that the second ground of appeal fails.

201 I turn to the third ground. One may accept the numerous statements to which the Chief Justice has referred to the effect that, in the case of environmental offences, it is rare for s556A (the precursor to s10) to be applied. However, when one comes to consider a particular case, it seems to me preferable to look primarily at the considerations which arise in that case. These will, of course, include the nature of the offence as defined in the statute creating it and the penalty provided together with the perceived object of the relevant statutory provision. But, subject to such matters, there is no reason to give s10 any more restricted operation in the case of environmental offences than in the case of the general run of offences to which it applies.

202 What Talbot J said when directing attention to the possible application of s10 in this case was:-

“The Master, Captain Thorneloe, has an impeccable record at sea dating back to 1973. He was first appointed master of a vessel in 1997. He has never had or been involved in spillage of product either as chief office or as a master.

R v Thompson; R v Houlton

Although the amount of product discharged from the ship may have been low (between 10 and 30 litres), nevertheless, the potential for significant harm arose as a consequence of the two established serious lapses in proper procedure. The master must ultimately bear a responsibility for these breaches as the person in overall charge of the ship’s operations. It is not appropriate in the circumstances to apply the provisions of s10 of the Crimes (Sentencing Procedure) Act 1999.

Both defendants have shown contrition in statements presented to the Court.”

203 The “lapses” and “breaches” were, of course, the Chief Officer’s neglect to attend properly to the gauge and the failure of a crew member to tighten one scupper plug sufficiently.

204 From the passage I have quoted, it appears that His Honour regarded the potential for significant harm, the lapses in proper procedure and what he saw as the Master’s ultimate responsibility for these as sufficient to outweigh the other factors he mentioned and which argued for the application of s10. His Honour did not advert to the topic of what, if anything, the Master could have done to prevent the lapses.

205 That such a matter is relevant to the exercise of the discretion under s10 is amply demonstrated by the reasons of the Chief Justice. To them I would add only this. Of the 5 principal general considerations in sentencing - general deterrence, personal deterrence, retribution, rehabilitation and protection of the community - see Veen v R (No 2) (1987-88) 164 CLR 465 at 476, the last two are normally of little additional consequence where, as in this case, the penalty takes the form of a fine. Retribution may well have a part to play but save insofar as considerations of deterrence may cause actual or prospective offenders to cease activities which have associated with them risks of the commission of strict liability offences, there is little point in punishing someone for an event which he could have done nothing to avert.

206 And the topic of what the Appellant could have done is in my view of such significance that Talbot J’s failure to refer to it is indicative of error. His Honour has failed to “take into account some material consideration … his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so” - House v R (1936) 55 CLR 499 at 505.

207 It was submitted on behalf of the Respondent that there were 3 things the Appellant could have done to prevent the discharge occurring. It was submitted firstly that the gauge was faulty and, implicitly, should have been fixed; secondly, the Appellant could have issued a news bulletin or standing instruction in relation to the operation of the gauge; thirdly, aware of the need to drain rain water from the decks, he should have ensured that the officers and crew were reminded of their responsibilities when loosening scupper plugs.

208 The first of these matters was not one of the 2 matters relied on by Talbot J and although his Honour did, elsewhere in his Reasons, refer to the gauge as “faulty” he gave no reasons for that conclusion. There was evidence before him that the gauge did have problems or the possibility of problems when lighter cargoes of the nature of that the subject of the discharge were being loaded but there was a known way of dealing with them. The fact that an item of equipment does not work perfectly in all conceivable circumstances without additional human intervention does not, of itself, demonstrate it is necessarily faulty. His Honour did not discuss whether he accepted or rejected the evidence to which I have referred and in light of the absence of discussion on this topic, and his Honour’s failure to refer to it in the passage I have quoted, it does not seem to me that this matter is one which should be regarded as of present relevance.

209 The suggestion that the issue of a news bulletin or standing instruction in relation to the operation of the gauge was something further that the Appellant might have done cannot be denied. It is always possible to issue yet one more piece of paper or a repeat of an instruction. But in light of the fact that the Chief Officer ignored the specific warning of the Second Officer, I see no grounds to infer that a general instruction or standing order would have made the slightest difference. Indeed, it seems to me that the probabilities are that they would not.

210 In part similar remarks may be made in respect of the one scupper plug through which the discharge occurred and which, according to remarks of Talbot J, apparently required only one nut to be tightened when the problem was discovered. The fact that there was only one plug which leaked despite the quantity of liquid on deck which has led to the view that the potential for harm was serious suggests that the crew knew what they were to do and that the error was in the execution of the very simple task of tightening one nut. It is sheer speculation to suggest that more training or instruction would or even might have made any difference.

211 And in relation to these matters, it is relevant to bear in mind an instruction which the Appellant did give. Talbot J did not refer to it but it appears at page 89 of the Appeal Book. It is entitled “Master’s Orders to the Chief Officer” and contains the following:-

“You are responsible for the safe loading and discharge of the cargo with the assistance of the Deck Officers, Crew and, if necessary, Engineers. …

When setting up systems or altering them during the operation make sure someone double-checks your actions.”

212 The evidence does not disclose whether or not the tightening of the scupper-plugs was double checked but whatever be the situation in that regard, what is there to suggest another instruction from the Appellant would have made any difference?

213 Relevant also is evidence given by the Appellant, and not challenged, that prior to this incident the Chief Officer had, since his boarding the vessel 6 weeks earlier, performed his duties satisfactorily and without difficulty and evidence that following the incident the owner of the vessel determined that the Chief Officer should be demoted (though he resigned to prevent this). This evidence establishes that the Chief Officer was at all times at risk of disciplinary action. It is reasonably to be inferred that he would have known that defaults on his part such as that which has led to these proceedings would be likely to be followed by significant sanctions, and thus there is further ground for thinking that no further instruction from the Appellant would have made the slightest difference so far as the Chief Officer’s conduct is concerned.

214 In summary, I see no grounds for thinking that there was anything further the Appellant could have done to avoid the discharge which occurred. While that, of course, does not relieve him of liability under s27 of the Marine Pollution Act 1987, it is a matter properly to be taken into account under s10. Talbot J did not do so and thus his sentencing discretion miscarried and it falls to this Court to re-sentence.

215 For reasons indicated above I do not regard considerations of deterrence or retribution as requiring the imposition of any penalty on the Appellant. In light of his impeccable record, the minimal harm which actually occurred and the absence of any personal fault, the case is one in my view where, despite the terms of s27 and the objects of the Marine Pollution Act, it is appropriate to exercise the discretion under s10(1)(a) of the Crimes (Sentencing Procedure) Act.

216 In that regard, I should acknowledge the practice of the Land and Environment Court to which the Chief Justice has referred of holding the Master responsible (and not applying s10) save where the senior officer directly responsible is convicted. Clearly the conviction and punishment of another senior officer (and/or the Owner) as a vindication of the policy behind the legislation and perhaps as sufficient retribution for the commission of the offence may be relevant to the exercise of the discretion under s10. However, it would be quite wrong to regard the happening of such events as pre-conditions for the exercise of the discretion.

217 In my view the appeal should be allowed, the conviction and sentence quashed and in lieu thereof the Court should, while finding the offence proved, direct that the charge be dismissed.

218 In case there be any doubt, I should indicate that I would allow the order of Talbot J in relation to costs before him to stand. The charge was properly brought. Section 17 of the Criminal Appeal Act precludes any order in respect of the costs in this Court.

219 HOWIE J: I agree with the orders proposed and reasons given by both Spigelman CJ and Hulme J.

**********

Citations

Thorneloe v Filipowski [2001] NSWCCA 213

Most Recent Citation

Cases Citing This Decision

212

NSW Food Authority v Samaras Food Pty Ltd [2021] NSWSC 237

Cases Cited

23

Statutory Material Cited

7

Filipowski v De Ocampo [1998] NSWLEC 119

Morrison v Peers [1995] Nswlec 77 (12 May 1995) [1995] NSWLEC 77

Burns v Corbett; Gaynor v Burns [2017] NSWCA 3

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CITATION:	THORNELOE v FILIPOWSKI [2001] NSWCCA 213 revised - 1/08/2001
FILE NUMBER(S):	CCA 60004/01
HEARING DATE(S):	25 May 2001
JUDGMENT DATE:	30 July 2001
PARTIES :	Peter Charles Thorneloe (Appellant) Barbara Filipowski (Respondent)
JUDGMENT OF:	Spigelman CJ at 1; Hulme J at 194; Howie J at 219

LOWER COURT JURISDICTION:	Land and Environment Court
LOWER COURT FILE NUMBER(S) :	50039/00; 50046/00
LOWER COURT JUDICIAL OFFICER :	Talbot J

COUNSEL :	I Barker QC / R Sutherland (Appellant) R Ellicott QC / A Hill (Respondent)
SOLICITORS:	Blake Dawson Waldron (Appellant) Abbott Tout (Respondent)
CATCHWORDS:	ENVIRONMENTAL LAW - sentencing - consistency - Marine Pollution Act 1987, s27(1) - CRIMINAL LAW - sentencing - discretion to dismiss a charge without proceeding to conviction - "potential for harm" - Crimes (Sentencing Proceedure) Act 1999, s10
LEGISLATION CITED:	Clean Waters Act 1970 Courts Legislation Amendment Act 2000 Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 Environmental Offences and Penalties Act 1989 Marine Pollution Act 1987 Occupational Health and Safety Act 1983
CASES CITED:	Brownlie v State Pollution Control Commission (1992) 27 NSWLR 78 Clarke v Environment Protection Commission (1997) 98 LGERA 114 Cobiac v Liddy (1969) 119 CLR 257 at 269 Director of Public Prosecutions v Stonehouse [1978] AC 55 Environmental Protection Authority v Bathurst City Council (1995) 89 LGERA 79 Federal Steam Navigation Co Ltd v Department of Trade and Industry [1974] 1 WLR 505 Filipowski v De Ocampo [1998] NSWLEC 119 Filipowski v Esar Bunkering Group Ltd (Lloyd J, 17 November 1998, unreported) Filipowski v Fratelli D’Amato Srl (2000) 108 LGERA 88 Filipowski v Ryong [1998] NSWLEC 63 Filipowski v Terminals Pty Ltd (1999) 105 LGERA 165 Gammon (Hong Kong) Ltd v Attorney General of Hong Kong [1985] AC 1 He Kaw Teh v The Queen (1984-1985) 157 CLR 523 Hoare v The Queen (1989) 169 CLR 348 House v The Queen (1936) 55 CLR 499 Hunter Water Board v State Rail Authority of New South Wales [No 2] (1992) 75 LGRA 22 Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (1999) 90 IR 464 Leighton v Office of Marine Administration (NSW Court of Criminal Appeal, 5 December 1997, unreported) Lim Chin Aik v The Queen [1963] AC 161 Lowe v The Queen (1984) 154 CLR 606 Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council (No 2) [2001] NSWCA 28 McConnell Dowell Constructors (Aust) Pty Ltd v Environmental Protection Authority (2000) 50 NSWLR 127 Morrison v Ausmarine Fisheries Pty Ltd (1995) 88 LGERA 442 Morrison v Che Mat (1997) 95 LGERA 212 Morrison v Dilmun Navigation Co Pty Ltd (1995) 87 LGERA 257 Morrison v Kingston Marine Corporation Inc (Pearlman J, 26 February 1997, unreported) Morrison v MAFI (Bignold J, 8 August 1997, unreported) Morrison v Michel (Stein J, unreported, 14 June 1996) Morrison v Peers (1995) 87 LGERA 39 Morrison v Spliethoffs Bevrachtingscantoor BV (1996) 91 LGERA 318 Morrison v Valle (1995) 87 LGERA 278 R v Ingrassia (1997) 41 NSWLR 447 R v Jurisic (1998) 45 NSWLR 209 at 221D- R v Morgan (1993) 70 A Crim R 368 R v Wong (1999) 48 NSWLR 340 Schultz v Tamworth City Council (1995) 58 IR 221 State Rail Authority of New South Wales v Hunter Water Board (1992) 28 NSWLR 721 Taylor v Environment Protection Authority (2000) 50 NSWLR 48 The Queen v De Simoni (1980-1981) 147 CLR 383Thompson v The Queen (1988-1989) 169 CLR 1 Treacy v Director of Public Prosecutions [1971] AC 537 Tyler v Sydney Electricity (1993) 47 IR 1 Valle v Morrison (NSW Court of Criminal Appeal, 22 November 1995, unreported) Veen v The Queen (No 2) (1987-1988) 164 CLR 465 Wong v Melinda Group Pty Ltd (1998) 82 IR 118 WorkCover Authority of New South Wales v Ecolab Pty Ltd (1999) 90 IR 413 WorkCover Authority of New South Wales v Fernz Construction Materials Ltd (No 2) (2000) 100 IR 23 WorkCover Authority of New South Wales v Profab Industries Pty Ltd (2000) 49 NSWLR 700
DECISION:	1. Appeal allowed; 2. Order of the Land and Envvironment Court convicting and fining the Appellant set aside; 3. The offence in proceedings No. 50039 of 2000 in the Land and Environment Court is proved but no conviction is recorded and the proceedings are dismissed; 4. Costs order made by Talbot J in proceedings No. 50039 of 2000 in the Land and Environment Court against the Appellant to stand.