Von Stieglitz v Dixon (No. 2)

[2017] QDC 16

DISTRICT COURT OF QUEENSLAND

CITATION:

Von Stieglitz v Dixon (No. 2) [2017] QDC 16

PARTIES:

PATRICK VON STIEGLITZ
(appellant)

v

KENDALL MARIE DIXON (DEPARTMENT OF TRANSPORT AND MAIN ROADS)
(respondent)

FILE NO/S:

36/2016

DIVISION:

Criminal

PROCEEDING:

Appeal – s 222 Justices Act

ORIGINATING COURT:

Magistrates Court at Proserpine

DELIVERED ON:

7 February 2017

DELIVERED AT:

District Court at Mackay

HEARING DATE:

2 February 2017

JUDGE:

Smith DCJA

ORDER:

1.    The appeal is dismissed.

2.    I will hear the parties on the question of costs.

CATCHWORDS:

CRIMINAL LAW – JUDGMENT AND PUNISHMENT – SENTENCE – whether sentence imposed by the Magistrates Court for failing to have insurance by shipowner was manifestly excessive

Justices Act 1886 (Qld) s 222

Transport Operations (Marine Pollution) Act 1995 s 67A

Teelow v Commissioner of Police [2009] 2 Qd R 489

COUNSEL:

The appellant is self-represented

Ms S Gibson for the respondent

SOLICITORS:

Department of Transport legal unit for the respondent

Introduction

1. This is an appeal by the appellant against penalties imposed on him in the Magistrates Court at Proserpine on 29 March 2016. 

1. The appellant pleaded guilty to the following charge in the Magistrates Court at Proserpine on 29 March 2016.

“On the eighth day of December 2014 at Shute Harbour on the Mackay Magistrate’s Court district, Patrick Von Stieglitz, being the owner of a ship more than 15 metres in length overall, did not have an insurance policy that, to the limits applying under a regulation, or sufficient to pay for the clean-up costs of the discharge of a pollutant from the ship into coastal waters, and the costs of salvage or removal of the ship from coastal waters if the ship is abandoned or wrecked, contrary to s 67A(2) of the Transport Operations (Marine Pollutions) Act 1995.

Further particulars
Ship:  Tateyama Maru, registration 25670 QC
Length:  35.5 metres
Limits applying under a regulation:  10 million dollars pursuant to s   76(1)(c) of the Transport Operations (Marine Pollutions) Regulation 2008.
Insurance policy held:  Nil.”

1. The offence was said to be contrary to s 67A(2) of the Transport Operations (Marine Pollutions) Act 1995 (Qld).

1. The appeal is pursuant to section 222 of the Justices Act 1886 (Q).

1. Section 222(2)(c) of the Justices Act 1886 provides: 

“if a defendant pleads guilty or admits the truth of a complaint, a person may only appeal under this section on the sole ground that a fine, penalty, forfeiture or punishment was excessive or inadequate.” 

1. It is usual to succeed in such an appeal for the appellant to show that the court below was in error.[1]

   [1]Teelow v Commissioner of Police [2009] 2 Qd R 489 at [4].

Background

1. The transcript of the proceedings on 29 March 2016 shows that the appellant was represented before the Magistrates Court.  The Magistrate read the charge to the appellant, he was asked whether he understood the complaint and he pleaded guilty to the charge. 

1. The prosecutor referred to comparable decisions and placed before the court the facts of the matter. 

1. The prosecutor informed the court that in December 2014 the vessel (a 35.5m long ex-longliner) was anchored at Shute Harbour. It was not used for any commercial purpose and had not undertaken any voyage for a considerable period. On 8 December 2014 officers of the department boarded the ship. The appellant admitted there was no insurance policy for the vessel. He also told them he had previously insured the ship, but when he went back to the insurance company they refused to insure it.

1. The appellant said he believed MSQ and the insurance company had been conspiring. He said the ship was maintained in a safe place and he kept it safe to the best of his ability. He said he was not in a financial position to pay for insurance.

1. The prosecutor mentioned that the appellant was 61 years of age and had previously been convicted in the Proserpine Magistrates Court on 13 August 2012 for failing to have a sufficient policy for the same vessel (T1-4.45).  He and his wife had been convicted and fined $1,000 after a summary hearing.  The maximum penalty for the offence before the court was 850 penalty units i.e. $96,772.50.  The prosecutor then mentioned the details of some comparable decisions. 

1. The defence solicitor informed the Magistrate that the appellant was a 62 year old man born in Tasmania.  He attended school until he was 17 and then moved to Western Australia where he attended a technical college and completed a 12 month certificate in seamanship and fishing which was his predominate work.  He had been in a relationship with his wife for 16 years.  The vessel in question had been purchased on 30 June 2004 at an auction in Brisbane.  He paid about $100,000 for it and spent an excess of $600,000 in a full refit of the ship.  He had exhausted all of his funds so he made a decision to charter the vessel and try and get some money.  It was chartered for two years but it sustained significant damage from some individuals who had chartered it, but had not repaired it.  He initiated some court action but was unable to pursue this because of his financial situation.  He was left with a vessel with significant damage.  He had spent more funds on it so it was at a level where it was suitable for private use but not for commercial use. 

1. The appellant had been attempting to obtain insurance.  He also had a number of health issues.  He was diagnosed with mouth cancer in October 2012.  It was diagnosed as terminal but he had had treatment and was in the 15 per cent of people who survive after five years.  A medical report in this regard was tended (Exhibit 1 in the Magistrate’s Court).  He had lost his teeth and 30 per cent of his body weight.  The appellant had listed the vessel for sale for an extended period and no one had made any offers.  There was no one in Australia who wanted to scrap the vessel.  He originally obtained insurance through a Spanish broker underwritten in Uruguay but the insurer refused to renew it.  The difficulty with Australian insurance was that it was prohibitive in terms of cost as he was not able to get stand-alone insurance   He found himself in a situation where he had expended all of his funds and he could not afford to pay for insurance.  The appellant was on a disability pension because of his health issues.  It was submitted that a penalty towards the lower end of the range should be imposed. 

1. The magistrate ultimately took into account the plea of guilty and noted there should be a reduction of penalty because of this.  He took into account the appellant’s financial difficulties and health issues in determining the penalty.  He took into account the previous conviction and ultimately determined that a fine in the sum of $7,500 was appropriate with a conviction recorded, with the matter referred to the State Penalties Enforcement Registry.

Submissions

1. The appellant submits, in light of the facts placed before the court, the penalty imposed in the Magistrates Court was excessive.  He stresses that he pleaded guilty to the offence.  He alleges that the legislation is unfair as he is in a position where he cannot afford insurance offered. He stresses he had been able to pay for the insurance originally but it was then refused. He stresses he had made all attempts to resolve the situation.   

1. The respondent on the other hand submits that the maximum penalty for the offence under the section was 850 penalty units i.e. $96,772.50.[2]  It was submitted that the penalty imposed was not excessive, having regard to the maximum penalty, the comparable decisions and the appellant’s previous conviction of a similar nature. 

   [2]Section 67A(2) of the Transport Operations (Marine Pollution) Act 1995. 

Discussion

1. I accept the respondent’s submissions.

1. In my view, the appellant cannot demonstrate that the penalty imposed was excessive. Also no error can be shown.  The maximum penalty here was $96,772.50.  Bearing in mind this was the appellant’s second conviction for a similar offence, the fine of $7,500 cannot be said to be excessive.  The appellant had previously been convicted in relation to the same ship and had been fined $1,000 on 13 August 2012. 

1. The magistrate, in my view, sufficiently had regard to relevant matters under s 9(2) of the Penalties and Sentences Act 1992.  He stated that the penalty was reduced having regard to the appellant’s plea of guilty and took into account, whilst there was some delay, the delay was not untoward.[3]  The magistrate also had regard to the appellant’s personal circumstances, financial difficulties and health issues, noting they were relevant in determining penalty.[4] 

   [3]Transcript of decision, p 2.5-7. 

   [4]Transcript of decision, p 2.10-15. 

1. There are a number of comparable decisions. These cases tend to show the penalty was within the range.

1. In the case of the Sizmur[5] the defendant was convicted and fined $10,000 for a breach of section 67A. In that case the ship the Aware was a former Royal Australian Naval vessel 32.9 long. The defendant had undertaken some work on the ship but it was not suitably maintained and its condition was deteriorating. The defendant had ceased communications with MSQ.

   [5]Bundaberg Magistrates Court 14^th April 2010.

1. Mr Sizmur appeared again before the Bundaberg Magistrates Court on 18^th April 2012 and was convicted after trial of 2 more offences involving the Aware. The ship had continued to deteriorate and a direction was given that he remove pollutants from the ship and remove it from Queensland waters. He did not and the ship remained uninsured. MSQ removed the pollutants and the ship. There was a likelihood the ship would have sunk but for intervention. Convictions were recorded and the defendant was fined $15,000 on charge 1 (the insurance charge) and $2,500 on charge 2.

1. I observe that the penalty in the present case is half of the one imposed in the second Aware case.

1. In the matter of Elliott[6] the offender was fined $2,000 without the recording of a conviction. The vessel was smaller (18.1m) but was unseaworthy. The offender had no previous convictions.

   [6]Bundaberg Magistrates Court 11 November 2010.

1. In the matter of Williams[7] the offender was fined $10,000 on the fail to have insurance charge and $5,000 on a charge of operating an unsafe ship. The vessel was of a similar size. The vessel grounded and then ungrounded. No apparent damage was caused, but the ship was not seaworthy and should not have left the port. The matter proceeded to trial. Convictions were recorded. The offender had no previous.

   [7]Cairns Magistrates Court 15 June 2011.  

1. The appellant relied on 2 cases. In the first involving the Venus of Portsmouth the ship ran aground. The appellant argues that no charges were brought. I do not consider that case assists with the issues in this appeal.

1. In the second case involving the Whitsunday Magic, the ship became stuck off Airlie beach. There was a significant salvage bill. The maximum fine for failing to remove the ship without reasonable excuse was said to be $20,000. The fine imposed was $1,500. I do not consider that case of much assistance when considering section 67A of the Act.

1. Looking at the comparable decisions, the range of penalties has been between $2,000 and $15,000, although in those cases there was an element of unseaworthiness involved with the ships- unlike in the present case. I find that a fine of $7,500 for a second offence is by no means excessive.                 

1. In my view, the magistrate crafted a penalty which was suitable to the circumstances of the present offence and took into account the personal circumstances of the respondent.[8] The recording of a conviction was within discretion pursuant to s 12 of the Penalties and Sentences Act. In my view, the discretion was properly exercised and did not miscarry. The appellant already had the benefit of having no conviction recorded.

   [8]Transcript of decision, p 2.13-34. 

1. One can understand the importance of this provision particularly bearing in mind the possibility of damage to Queensland waters from larger vessels and the potential cost to clean up the sea and coast if such damage occurs. In the explanatory notes it was noted that the principal objective of the bill was to protect Queensland’s marine and coastal environment by minimising deliberate and negligent discharges of ship-sourced pollutants into coastal waters.[9] Without insurance it may be left to the Queensland taxpayer to pay these costs. Section 67A was inserted to ensure that these costs are recoverable.[10]  

   [9]See Explanatory Notes to Transport Operations (Marine Pollution) Bill 1994.

   [10]See Explanatory Notes to Transport Legislation Amendment Bill 2002.

Conclusion

1. In the circumstances, my formal orders are: 

1. The appeal is dismissed.

2. The orders made in the Magistrates Court in this matter are confirmed. 

3. I will hear the parties on the question of costs.