Barbara Filipowski v Island Maritime Limited; Barbara Filipowski v Sachin Kulkarni

Land and Environment Court (NSW)|2006-09-21|Before: Pain J

CITATION : Barbara Filipowski v Island Maritime Limited; Barbara Filipowski v Sachin Kulkarni [2006] NSWLEC 750

PROSECUTOR Barbara Filipowski PARTIES : DEFENDANTS Island Maritime Limited Sachin Kulkarni

FILE NUMBER(S) : 50101 of 2003; 50102 of 2003

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 s10, s21A Marine Pollution Act 1987 s 8

Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357; Cabonne Shire Council v Environment Protection Authority (2001) 115 LGERA 304; Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 ; Filipowski v Cadem Shipping Pty Ltd [2005] NSWLEC 552; Filipowski v Dayton Corporation; Sang-Tae [2004] NSWLEC 325; Filipowski v Fratelli D'amato S.r.1 and Others (2000) 108 LGERA 88; Filipowski v Island Maritime Limited 2005 NSWLEC 73; Filipowski v Island Maritime Ltd (2003) 124 LGERA 331; Filipowski v Island Maritime Ltd (2004) 135 LGERA 229; Filipowski v Kleeman & Schiffsbeteiligungsges m.b.H & Co KG (2004) 134 LGERA 48; Filipowski v Vopak Terminals Sydney Pty Ltd (2006) NSWLEC 104; CASES CITED: Island Maritime Ltd v Filipowski [2004] NSWCCA 453; Island Maritime Ltd v Filipowski (2006) 80 ALJR 1168; Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; R v Adler (BC200502015) [2005] NSWSC 274 ; R v Blair [2005] NSWCCA 78; R v Johnson [2004] NSWCCA 76; R v Olbrich (1999) 199 CLR 270 ; R v Shankley [2003] NSWCCA 253; R v Sharma (2002) 54 NSWLR 300; R v Thomson; R v Houlton (2000) 49 NSWLR 383; Thorneloe v Filipowski (2001) 52 NSWLR 60; Veen v the Queen (no 2) (1988) 164 CLR 465

21/09/2006 DATES OF HEARING: 22/09/2006 22/11/2006

PROSECUTOR A. L. Hill SOLICITORS LEGAL REPRESENTATIVES: Dibbs Abbott Stillman DEFENDANT G. Groein SOLICITORS Ebsworth and Ebsworth

JUDGMENT:

      THE LAND AND
      ENVIRONMENT COURT
      OF NEW SOUTH WALES

50101 of 2003 Barbara Filipowski v Island Maritime Limited

JUDGMENT 1 Her Honour: These are two prosecutions under s 8(1) of the Marine Pollution Act 1987 ("the MP Act"). The offences charged relate to a discharge of oil into State waters at Botany Bay in contravention of s 8(1) of the MP Act, from the "Pacific Onyx" ("the ship"), owned by Island Maritime Limited. The Defendant in proceedings 50101 of 2003 is the owner of the ship, Island Maritime Limited. Captain Sachin Kulkarni, the Defendant in proceedings 50102 of 2003, was the Master of the ship at the time of the offence and is charged under the same section. Both Defendants have pleaded guilty and I must determine the appropriate penalty. A guilty plea means that the Defendants have pleaded guilty to the essential elements of the offence. 2 The offence provision under s 8 is a strict liability offence. At the time of the offence s 8 of the MP Act provides: (1) Subject to subsections (2) and (4), if any discharge of oil or of an oily mixture occurs from a ship into State waters, the master and the owner of the ship are each guilty of an offence punishable, upon conviction, by a fine not exceeding: (a) if the offender is a natural person - $220 000, or (b) if the offender is a body corporate - $1 100 000. Facts not in dispute 3 While there was no statement of agreed facts relied on by the parties, the Prosecutor provided the following facts, none of which were disputed by the Defendant. These facts were based on a large number of affidavits relied on in the proceedings by the Prosecutor. 4 On 14 November 1999 the ship was at the Caltex Wharf, Kurnell, Botany Bay. The ship was moored at No 2 Berth starboard side to the wharf with its bow pointing north. 5 The ship commenced discharging her cargo of crude oil to the shore facilities at 2.45pm on 14 November 1999. The weather conditions were good, the wind was from the north-west at 12 knots and the tide was outgoing with low tide expected to be at 7.40pm. 6 At 3.34pm the ship began discharging its cargo at full pressure. At that time Mr Blake, a Caltex Load Master, who was on the Caltex Wharf, noticed a strong smell of crude oil and observed oil in the water on the ship's starboard side between the ship and the wharf. 7 Mr Blake shut down all discharge lines from the ship at approximately 3.34pm. Even after the shutdown Mr Blake observed that oil was collecting in the water along the starboard side of the ship and under the Caltex Warf. The oil spill in the water became progressively worse so that the oil spread continuously along the starboard side of the ship about 2m wide and under the Caltex Wharf. 8 Mr Todd, a Caltex Area Supervisor, observed that the oil on the water's surface between the ship and the wharf was being moved into Port Botany by the action of the tide. This tide action temporarily left the water's surface reasonably clear between the ship and the wharf where the oil had been. Mr Todd then left the wharf and returned 10 to 15 minutes later and observed more oil in the water along the starboard side of the ship. Mr Todd then concluded that this oil was a different oil from that which he had originally observed in the water under the wharf, as that oil was now to the east of the Caltex Wharf having been moved there by the outgoing tide. 9 At approximately 4pm Mr Fowke of Sydney Ports Corporation ("the SPC") proceeded in the vessel "Response II" to the Caltex Wharf at Botany Bay. He initially observed heavy oil on the ship's starboard side approximately 2m wide and 100m stretching on the water's surface from the ship's manifold area to the ship's stern accommodation. Mr Fowke then radioed SPC at Brotherson Dock and arranged for the SPC tug "Shirley Smith" to attend and assist. 10 On arrival at the Caltex Wharf the tug used water cannon action in an attempt to break up the oil on the water. Mr Fowke however, observed that although the tug was able to break up some oil, the oil then floated on the water's surface as a wax like substance. He also saw more heavy oil continue to appear on the water's surface along the Pacific Onyx's starboard side. 11 Mr Ting, a SPC Port Officer who was on board the Pacific Onyx also observed further quantities of oil coming up to the water's surface from the ship during the late afternoon and evening of 14 November 1999. 12 Mr Goddard, the Caltex Maintenance Co-ordinator, arrived at the Caltex Wharf at 5.05pm and observed an oil slick on the water's surface on the eastern side of the wharf. This oil slick was half way between the ship and the National Parks shoreline. Mr Goddard stated that the oil slick stretched from the wharf for a distance of approximately 200m and was about 100m wide. 13 Mr Blake, the Caltex Load Master, continued to observe and at 6.05pm and 6.25pm he noticed fresh oil forming on the water's surface at the ship's starboard quarter. Accordingly at 6.10pm an oil absorbent boom was placed along the side of the starboard quarter of the ship by Caltex personnel. 14 An oil containment boom was then placed by the SPC's personnel from the port side of the ship around its stern then under the Caltex Wharf to meet the partial oil absorbent boom which had been laid by Caltex personnel from the ship's bow to its port side. The laying of the oil containment boom was necessary, due to the failure of the Caltex oil absorbent boom to contain the oil escaping from the ship. 15 At approximately 9pm on 14 November 1999 divers from Gray Diving Services Pty Limited inspected the waterline below the ship's starboard side near the accommodation area. However due to failing light they were unable to discern the precise source from which the oil was escaping into the water from the ship. 16 The SPC clean up operations took from 4pm to 8.30pm on the date of the incident. In this context SPC personnel attempted to capture as much oil as they could from the water's surface although they were hampered by darkness and the outgoing tide. The "Marko" skimmer, which is an oil recovery vessel, recovered approximately 968 litres of oil. 17 The divers from Gray Diving Services returned at 5.30am the day following the incident and re-entered the water at approximately 8am. They observed globules of oil breaking on the water's surface. The divers then followed the globules of oil to their source and observed oil coming from 50mm to 60mm vents above the ship's starboard aft sea chest grating. The divers observed that oil was escaping in the area of the ship's cargo sea chest on the starboard quarter prior to the transfer pipe work valves being opened. The divers identified the discharge point as the ship's sea chest and video taped the discharge. 18 At approximately 4pm on 15 November 1999, the SPC vessel "Anadara", which is also an oil recovery vessel, recovered a large quantity of oil from the water's surface within the boomed area around the ship. 19 Prior to the Anadara's tanks being emptied, Mr Alsop, SPC General Manager Port Services, inspected them and observed that the two oil recovery tanks were half full. There was a layer of approximately 200mm on the surface of the water in each of the tanks and there was also a depth of oil of approximately 300mm in the oil collection well which was filled to 100mm from the top of the well. Accordingly, in Mr Alsop's opinion the Andara had recovered approximately 968 litres of oil from within the boomed area around the ship. 20 Mr Goddard, the Caltex Maintenance Co-ordinator, also observed that two orange bins which were on the Caltex Wharf and which were slightly bigger than a 200 litre drum, were used to store recovered oil and absorbent material. He observed that both these HAZMAT drums were filled with oil, oil saturated pads and oil absorbent boom. In this context, M Goddard estimated that approximately 100 litres of oil was contained collectively in both bins. 21 Mr Goddard further observed light traces of oil on Kurnell Beach at approximately 6am on 15 November 1999 when he inspected that beach.

Evidence relied on 22 The Prosecutor relied on a large number of affidavits which attest to sightings of the oil on the date of the incident and the various steps taken to stop the spillage and investigate the source of its leakage. The facts outlined above which are not in dispute are derived from these. In particular, it relied on the affidavits of: (i) Robert Colin Jeffrey, sworn 30 October 2003, employee of the Maritime Services Board of NSW, the Sydney Ports Authority and the Sydney Ports Corporation at the time of the incident; (ii) Peter Joseph Bagnell, sworn 21 October 2003, employee of the Maritime Services Board of NSW, the Sydney Ports Authority and the Sydney Ports Corporation at the time of the incident; (iii) Barry Noel Fox, sworn 24 October 2003, employee of the Maritime Services Board of NSW, the Sydney Ports Authority and the Sydney Ports Corporation at the time of the incident; (iv) Philip Anthony Pegram, sworn 27 October 2003, employee of the Maritime Services Board of NSW, the Sydney Ports Authority and the Sydney Ports Corporation at the time of the incident; (v) Nicholas Mandros, sworn 28 October 2003, employee of the Maritime Services Board of NSW, the Sydney Ports Authority and the Sydney Ports Corporation at the time of the incident; (vi) David John Wilson, sworn 20 October 2003, employee of the Maritime Services Board of NSW, the Sydney Ports Authority and the Sydney Ports Corporation at the time of the incident; (vii) Robert Juris Strelis, sworn 24 October 2003, employee of the Maritime Services Board of NSW, the Sydney Ports Authority and the Sydney Ports Corporation at the time of the incident; (viii) Denys Morgan Fowke, sworn 15 October 2003, employee of the Maritime Services Board of NSW, the Sydney Ports Authority and the Sydney Ports Corporation at the time of the incident; (ix) Troy Michael Ting, sworn 23 October 2003, employee of the Maritime Services Board of NSW, the Sydney Ports Authority and the Sydney Ports Corporation at the time of the incident; (x) Anthony Tedesco, sworn 27 October 2003, employee of the Maritime Services Board of NSW, the Sydney Ports Authority and the Sydney Ports Corporation at the time of the incident; (xi) Christopher Charles Alsop, sworn 12 November 2003, the General Manager Port Services of the Sydney Ports Corporation at the time of the incident; (xii) Warren Goddard, sworn 13 November 2003, maintenance co-ordinator and head of the Refinery Oil Spill Response Team, of Caltex Refineries (NSW) Pty Ltd; (xiii) Iain Carlyle Blake, sworn 13 November 2003, load master employed by Caltex Refineries (NSW) Pty Ltd at Kurnell Wharf and on duty at the wharf at the time of the incident; (xiv) John Roderick Todd, sworn 13 November 2003, area supervisor employed by Caltex Refineries at the Kurnell Wharf, on duty at the time of the incident; (xv) Brian Dellaca, sworn 12 November 2003, load master employed by Caltex Refineries at Kurnell Wharf; (xvi) Michael Cummins, sworn 13 November 2003, employee of Caltex Refineries, whose task is to maintain the utilities in the Refinery and the Caltex wharf at Botany Bay; (xvii) Lee Ross Firkin, sworn 13 November 2003, load master employed by Caltex Refineries at Kurnell; (xviii) Derek Ashton Tucker, sworn 13 November 2003, load master employed by Caltex Refineries at Kurnell; (xix) Gregory John Vitnell, sworn 23 October 2003, director of Gray Diving Services Pty Limited; (xx) Brett Murray Hall, sworn 12 November 2003, a diver employed by Gray Diving Services Pty Limited; (xxi) Rijnhard Keet, sworn 24 October 2003, a diver employed by Gray Diving Services Pty Limited; (xxii) John Francis Leeder, sworn 14 November 2003, analytical chemist; (xxiii) William S Rooney, sworn 30 April 2004, aquatic ecologist; (xxiv) Dr Brian King, oceanographer and scientist, sworn 23 June 2006; and (xxv) Two affidavits of Peter Burge, a marine engineer, sworn 14 September 2006 and 27 June 2006;

23 The Court also viewed the video taken by Gray Diving Services the day following the incident, on 15 November 1999. 24 The Defendants relied on the affidavit of Captain Kulkarni, the Defendant and Master of the ship the subject of these proceedings at the time of the incident, sworn 20 September 2006. The affidavit of Captain Anil Singh, Fleet Director of Tanker Pacific Management Pty Ltd, sworn 20 September 2006 was also relied on.

25 The affidavit of Captain Kulkarni stated that he joined the Pacific Onyx in May 1999, his first command as Master. The affidavit outlines the usual routes and cargo of the ship, and the events on the date of the incident leading up to the oil leak. He stated that at 3.45pm on the date of the incident, he was alerted to an oil sheen visible on the water on the starboard side of the vessel, and upon seeing this immediately informed the Caltex terminal representative of the discovery. He then stated that cargo and bunkering operations were stopped immediately, all valves were shut and immediate investigations were carried out on board to determine the cause, which was not immediately obvious. He estimated that less than 50 litres of oil was spilled. His affidavit states that it was thought that a possible explanation for the oil spill was that oil could have leaked from the separator through the steam lines and into the sea chest and, therefore, it was decided to insert blanks into the steam line leading to the sea chest. These were fitted under surveyor supervision. However, despite this and other various inspections being carried out, the source of the oil leak could not be determined. He also stated that as Master of the vessel, he considered the safety of the vessel, her crew and the environment as being of paramount concern. He expressed contrition and regret at the oil being spilled.

26 The affidavit of Captain Singh, Fleet Director of Tanker Pacific Management (Singapore) Pty Ltd ("Tanker Pacific"), the company which manages the ship on behalf of the owner Island Maritime Limited of Moravia, Liberia, was relied on. Tanker Pacific has managed the Pacific Onyx since 1994. Captain Singh stated at par 19, 21 and 25 of his affidavit: 19. I have investigated the cause of the incident. In my opinion, it appears that the cause of the incident was a mechanical failure of a non return valve on a steam system used in cold water climates. The steam line is not used by the vessel for operations involving Australian ports. Prior to the incident, the vessel had spent four years on Australian and New Zealand service and therefore had not needed to use the steam line. … 21. The fact that oil was able to enter the steam line and leak through a valve which was in the closed position is extremely unusual. It was and is not expected. In my operational management of approximately 71 tankers and 10 FSOs over the last 17 years, this is the first time that such an incident has occurred. Following this incident, we circulated to our managed ships the Incident Report attached hereto marked "K" to alert our fleet to this unusual problem. There has been no similar incident. We maintain our policy that if ever a new or unforseen incident could affect any of our managed ships, it is our practice to circulate our fleet to share the lessons learned. … 25. Prior to this incident in November 1999, the MT "PACIFIC ONYX' had carried approximately 4 million tonnes of oil or petroleum products to and from Australia over four years during 103 cross-Tasman Sea voyages without mishap. 27 Captain Singh also stated that protection of the environment is an issue which Island Maritime Ltd and Tanker Pacific take seriously. He stated that Island Maritime Ltd is a member of the International Tanker Owners Pollution Federation Ltd, and contributes monetarily to the Federation, which provides rapid response and worldwide assistance for oil pollution incidents. Tanker Pacific, the appointed manager of the Pacific Onyx, engages external auditors to conduct audits of the vessel, focussing on safety, cargo operation and environmental issues. He identified various ways in which Tanker Pacific is committed to environmental protection and the various ways in which it has been recognised for this. Following the incident, Island Maritime Limited paid Sydney Ports Corporation $24,125 for clean up costs. He expressed contrition for the incident on behalf of Island Maritime Limited and Tanker Pacific. Factual issues in dispute (i) Cause of leak 28 Conflicting evidence has been tendered by the Prosecutor and the Defendants in relation to the cause of the accident. There is no conclusive evidence as to precisely how the oil escaped into the water near the sea chest of the ship despite investigations by the owner, the SPC and the Prosecutor. There are three possible valves from which the leak could have occurred in the steam system. This system was decommissioned from the cargo separator where the oil could be located at the time of the accident. The three possible scenarios are as follows: (i) two valves failed; the Prosecutor's evidence is that it is most likely that the valve ST 11V or a steam inlet valve [15] failed, the Defendant's evidence is that it is likely to be another valve ST 9V. (ii) one of these was left open although the evidence suggests that is unlikely because inspection after the leak found that all the valves were closed. (iii) one of either of the above. Onus of proof 29 A threshold issue arises as to whether the failure to identify the precise source of the leak from the ship is a matter about which the Prosecutor bears an onus in this sentencing hearing, or whether the onus of proof of the matter is relevant to the Defendants' claim in mitigation that the leak was an unforeseen accident. 30 The Prosecutor submitted that the lack of an explanation for exactly how the leak occurred means that the Court does not know if such a failure is likely to occur again. Further, the Prosecutor argued that no system change has been initiated or safeguards imposed to prevent a recurrence. The Prosecutor argued that it was for the Defendant to prove precisely where the oil leaked from in order to make good its claim that it was an unforeseen accident and that all necessary measures to avoid a repetition of the accident have been taken, which could be relied on as a mitigating factor. The Prosecutor relied on Filipowski v Vopak Terminals Sydney Pty Ltd (2006) NSWLEC 104 in support of its submissions. 31 The Defendants argued that because there was a failure in the Prosecutor's case to prove beyond reasonable doubt that the oil leak occurred in a particular way the Prosecutor could not so submit. Rather, the Defendant argued the Prosecutor had to prove all matters on which it relied beyond reasonable doubt. 32 I consider the Prosecutor's submissions on this issue are correct in light of the statements by the High Court in R v Olbrich (1999) 199 CLR 270 at 280, as relied on in Vopak at [13] and as applied by Bignold J at [12]. … where at the hearing on sentence for such [sic] an admitted offence, the prosecutor seeks to raise matters of aggravation of the offence, these matters must be proved by the prosecutor beyond reasonable doubt, and conversely where the defendant seeks to raise matters in mitigation, those matters must be proved by the defendant on the balance of probabilities: see R v Olbrich (1999) 199 CLR 270 at 280/281. 33 The Defendants in this case have pleaded guilty to the offences with which they are charged and are therefore taken to have pleaded guilty to the essential elements of the offence. It is not necessary for the Prosecutor in this sentencing hearing to prove beyond reasonable doubt precisely from where the leak occurred to make the submissions that it does. The onus falls on the Defendants to prove on the balance of probabilities as a matter in mitigation of penalty where the leak came from. The Defendants wish to submit in mitigation that they have taken all necessary steps to prevent a recurrence through a system change which was implemented, and also to demonstrate that it was an accident which could not be foreseen and was not due to any failure of duty on any person's part. 34 The Prosecutor relied on the evidence of Mr Burge, an engineer who inspected the ship's systems and relied on a plan of the ship's pipes to reach his conclusions as follows: I believe that the oil escaped from the vessel when the cargo tank and cargo oil pump valves had been opened to pump the cargo ashore. When the tank and pump valves were opened and the oil was admitted into one or more of the cargo separators … the oil flowed into the steam reticulation system through the steam inlet valve on one of the separators … . I do not know why or if the steam inlet valve was opened. It may have been the case that the valve was leaking or simply left open. The oil flowed through the steam reticulation pipework and out to the sea through a condensate drain valve or blow-down valve … which led to an outlet in the hull near the starboard side "ballast" sea chest. I do not know or if the blow down valve was opened. It may also have been the case that the blow-down valve was leaking or that it was simply left open. 35 In oral evidence he concluded the most likely explanation was that the oil leaked through valve 15, marked "S" on Exhibit 3, or more likely, valve ST 11V from which he considered a pipe leads to the ship's hull. 36 The Defendants relied on the oral evidence of Captain Kulkarni that the pipe leading from ST 11V terminated in the bilge and did not penetrate the hull. His opinion was that the most likely source of the leak was through valve ST 9V. Following investigation after the incident by SPC personnel the steam line to the sea chest was blanked off, as identified in exhibit 3. That blank was positioned "below" the line leading to valve ST 11V and "above" valve ST 9V. The Defendants' counsel argued this suggested the cause of the leak was likely to have been identified as ST 9V. 37 The Defendants also relied on evidence from Captain Kulkarni about the regular maintenance in dry dock of the Pacific Onyx and tendered records showing that maintenance on the valves on the steam lines was carried out. They were confirmed to be in order. At par 33 of his affidavit Captain Kulkarni states: Despite all the above, it was thought that a possible explanation, although acknowledged in our discussion to be highly unusual and unforeseen by myself, the attending surveyors and the SPC representative, was that oil could have leaked from the separator through the steam lines and into the sea chest, notwithstanding the steam line valves which had been inspected and confirmed closed. However, no other explanation could be found. Therefore, it was decided to blank off the steam line leading to the sea chest. Blanks were fitted under classification society surveyor supervision. 38 While Captain Kulkarni was cross-examined about the maintenance records and what they disclosed I do not consider his evidence was undermined. 39 The Defendants submitted that Mr Burge's opinion that ST 11V was the most likely source was incorrect because it was based on an incorrect premise that a pipe lead from that valve to the hull. Captain Kulkarni gave oral evidence that the pipe from the valve ended in the bilge so that it could not penetrate the hull, as shown in photographs (in exhibit 3).

40 I consider the Defendants have discharged their onus of proof with the evidence of Captain Kulkarni and as confirmed by the photographs in exhibit 3 so that it is more probable than not that the leak occurred from ST 9V. Further I note that steps have been taken to avoid a recurrence with the placement of a blank above ST 9V to prevent a further leak through that valve. This is additional to the blank which had previously been inserted between the entire steam system and the cargo separator. A similar change was also made throughout the entire fleet. (ii) Quantity of oil 41 The Prosecutor argued that a reasonably substantial amount of oil had leaked and bears the onus of proof beyond reasonable doubt as to the amount of oil as it relies on this circumstance to argue the spill is serious. The Prosecutor argued there was 1,075 litres of oil spilled relying on the affidavit evidence of Dr King, Chief Scientist of ASA Asia-Pacific Pty Ltd, to which his two reports dated 22 March 2004 and 21 April 2004 were attached. Based on observations of SPC and Caltex personnel, the amount of oil recovered from the "Anadara" and absorbent material collected in the HAZMAT bins, he estimated 1,056 litres escaped. To determine this he used an "oil map" program, a computer model specifically designed to simulate the movement and spreading of a surface oil slick at sea. These estimates are theoretical calculations based on the observations of third parties.

42 In his first report dated 22 March 2004, Dr King took into account the evidence of Iain Blake, the Caltex Load Master, and John Todd, Caltex Area Supervisor. Mr Blake was on duty on 14 November and witnessed the oil in the water that day. Mr Todd was called to attend the Caltex Wharf by Mr Blake on 14 November and also observed the oil in the water that day. From the evidence of Mr Blake, Dr King states: Consequently, the volume of oil observed by Blake immediately following the detection of the spill was calculated as 1,056 litres (being 323m2 in area and 3mm average thickness). 43 In his second report of 21 April 2004, Mr King repeats the findings in his earlier report, and adds a section titled "Spill Cleanup Observations", where he relies on the eyewitness affidavit evidence of Christopher Alsop who noted 968 litres of oil was collected by the SPC Macro Skimmer and further observations in the affidavit of Warren Goddard, Caltex Mainenance Co-ordinator relating to the amount of material in the HAZMAT bins. He again concluded that 1,056 litres of oil was spilled during the incident. 44 The Defendants argued that the amount of oil spilled had to be proved beyond reasonable doubt and that the Prosecutor had failed to discharge the onus because the reports of Dr King failed to refer to other estimates at the time of the incident. These are the estimates of Mr Fowke (the SPC Duty Shift Master at Port Botany on the date of the incident) who estimated there were 50 litres of oil, Mr Tucker (a load master of Caltex and on duty at the time of the incident) whose estimate appears in the first notice of oil spillage and of Mr Blake (a load master of Caltex and on duty at the time of the incident) in the second notice of oil spillage, each of which contained estimates of 50 litres. In his affidavit evidence, Captain Kulkarni estimated the spill as about 50 litres. Reliance was placed on Talbot J in Filipowski v Cadem Shipping Pty Ltd [2005] NSWLEC 552, where the oil map evidence of Dr King was not preferred by his Honour over an approximate calculation by the ship's captain based on his own observation and experience and using a Technical Information Paper produced by the International Tanker Owners Pollution Federation Limited. 45 Further, the Defendants argued there is no evidence that the Anadara was empty before it started collecting oil so that the evidence of the amount of oil collected in it is unreliable and does not prove the amount beyond reasonable doubt.

Finding on quantity of oil 46 The Prosecutor has the onus of proof of the quantity of oil spilled. Given that several eye witness accounts from the date of the incident are that 50 litres of oil was estimated to be spilled, a far lesser amount than the 1,056 litres calculated using the "oil map" computer program there must be a reasonable doubt about the amount of oil which was actually spilled. The substantial divergence between the amounts estimated by eye witnesses and the oil map program suggests that the amount of oil spilled is in the range of 50 - 100 litres as the Defendant argued, rather than 1,056 litres on the evidence and it is difficult to identify where in that range the figure lies. There is also no evidence that the Anadara was empty before it commenced clean up operations. 47 For the purposes of this sentencing hearing I consider the amount of oil spilled is in the range of 50-100 litres. It is difficult on the evidence to arrive at a precise amount.

Analysis of environmental harm 48 The Prosecutor did not rely on specific evidence of environmental harm caused by the particular oil leak in the water. It submitted that the deleterious impact of oil in the marine environment is well known, confirmed by the provisions of the MP Act giving rise to this offence. 49 A report of Mr Rooney, an aquatic ecologist, was tendered and relied on only to respond to applications by both Defendants under s 10 of the Crimes (Sentencing Procedure) Act 1999. In Thorneloe v Filipowski (2001) 52 NSWLR 60, the Court of Appeal accepted at 73 that the possibility of environmental harm could be considered in this context. Mr Rooney interviewed Mr Goddard and Mr Rodwell (the environmental manager of Caltex at the time of the spill) in order to "better understand the environmental effects of this spill". He was contacted to provide an assessment of the impact of the oil spill nearly two years after the incident. He considered that the potential impact zone of this oil spill incident encapsulated three species of seagrasses, a habitat which consistently yields the greatest richness of invertebrates species of any soft bottom community, but he concluded that there was unlikely to have been a significant impact on the important seagrass beds within the potential impact zone, nor on the sandy beach, the sub-tidal bare muddy sand, the rock groynes or the algal beds. He stated that there would have been a significant effect (at least a 10 percent loss of animal abundance) on at least two habitats within the potential impact zone, being the hard substrates of the timber piles under the wharf within the boomed area, and the plankton within the water column. He stated that organisms within these habitats would have been exposed to the oil as a result of tidal fluctuations on the timber piles, and as a result of emulsification of oil within the boomed area by turbulence created by wave action, propeller wash and water cannon. However, he also stated that "there is no clear evidence gathered at the time of the incident to substantiate this view".

50 The Defendants criticised the evidence of Mr Rooney. They argued that the report is based on supposition and is no more than hypothetical speculative opinion concerning what "might have been the likely outcome" of any spillage because Mr Rooney did not attend the site and did not conduct any environmental impact testing or examination. The Defendants pointed to numerous parts of Mr Rooney's report where he himself alluded to its deficiencies, including the lack of reported sightings of harm to fauna from the oil, the very light nature of the oil on the water's surface, the fact that no underwater inspection was carried out, and the lack of evidence to substantiate his views. The Defendants relied on the finding in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305, that in order to rely on any opinion of "experts", the Court is required to determine whether the opinions are based on a visible logical basis. I agree with the Defendants' criticisms of Mr Rooney and will not accord his evidence much weight. Objective gravity 51 The Crimes (Sentencing Procedure) Act sets out matters which must be considered in sentencing in s 21A of the Act, being whether there are any aggravating or mitigating factors. Section 21A(2) specifies aggravating factors to be taken into account. No aggravating factors are relied on by the Prosecutor here.

52 Regard must be had to the culpability of the Defendants and the individual circumstances which led to the commission of the offence. The discharge of oil was likely to be from one of three valves in the steam system, most probably ST 9V, which system had been decommissioned by the placement of a blank on the relevant pipe leading from the cargo separator before the incident. It is clear that it was an accidental discharge. There is no suggestion that there was any failure on the part of any person to carry out their duty which resulted in the oil leak. The amount of oil which spilled is less than contended for by the Prosecutor and there is no evidence of direct environmental harm arising from the oil leak. The matter, while serious, is in the less serious category of cases.

53 The Court is also to have regard to the maximum penalty applicable, as this is an expression of the seriousness Parliament attributes to the offence: see Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698. It stated at 698 and 701 respectively that: The task of a court is to assess the relative seriousness of the offender's particular offence in relation to a worst case for which the maximum penalty is provided … … the more serious the lasting environmental harm involved the more serious the offence and, ordinarily, the higher the penalty.

Section 10 Crimes (Sentencing Procedure) Act 1999 Matter 50102 of 2003: Kulkarni 54 Captain Kulkarni's counsel argued that no conviction should be recorded under s 10 of the Crimes (Sentencing Procedure) Act. Section 10 provides: (1) Without proceeding to conviction, a court that finds a person guilty of an offence may make any one 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, (c) an order discharging the person on condition that the person enter into an agreement to participate in an intervention program and to comply with any intervention plan arising out of the program. (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. (2A) An order referred to in subsection (1) (c) may be made if the court is satisfied that it would reduce the likelihood of the person committing further offences by promoting the treatment or rehabilitation of the person.

(2B) Subsection (1) (c) is subject to Part 8C. (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. 55 In relation to the matters specified in subsection (3), counsel for Captain Kulkarni submitted that he has no prior convictions anywhere. The incident did not cause any demonstrable environmental injury or harm, the offence did not arise as part not part of a planned or organised criminal activity, the Defendant was unlikely to reoffend, given that since the incident he has been promoted to a land based position, he has no personal culpability in the offence, and he has co-operated fully and completely with the SPC personnel and has indicated by way of affidavit and verbally to the Court his contrition for the offence. It was accepted that the offence was not trivial but that did not prevent the application of s 10. Finding on Kulkarni 56 In Thorneloe v Filipowski (2001) 52 NSWLR 60, Spigelman CJ said at 74 said: 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. 57 Further, Spigelman CJ in Thornloe and of Talbot J in Filipowski v Fratelli D'amato S.r.1 and Others (2000) 108 LGERA 88 at 101 (cited with approval by Spigelman CJ in Thorneloe at p 66) where his Honour said: 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 has 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.

58 In deciding whether to make a s 10(1) order, s 10(3) directs me to have regard to the Defendant's character, the nature of the offence, whether there were extenuating circumstances and any other matter I think proper. Captain Kulkarni is a person of good character with no prior convictions. Although the nature of the offence was not trivial, it was unusual in nature, not foreseeable, and Captain Kulkarni cannot be said to have failed to do anything to prevent the incident occurring. Further, there is no evidence of particular environmental harm arising from the incident. I consider I should apply s 10 to Captain Kulkarni in light of the dicta of Spigelman CJ in Thornloe v Filipowski.

Matter 50101 of 2003: Island Maritime Pty Ltd 59 An application to apply s 10 was also made in relation to Island Maritime. Island Maritime does have a prior conviction for a similar offence. The owners were convicted for a similar offence from the same ship on 21 February 2005 (see Filipowski v Island Maritime Limited 2005 NSWLEC 73). On that occasion Talbot J fined the owner $25,000, the Master $8,000 and ordered the Defendants to pay the Prosecutor's costs. However Counsel for this Defendant argued that the other offence should be treated as a second offence because the events giving rise to the offence occurred after this offence. This matter should be regarded as a first offence, meaning the Defendant has no prior conviction and should be treated as a first time offender for the purposes of sentencing in this matter. I do not accept that submission given that the first offence in which a conviction was recorded was clearly the first in time in terms of being dealt with in a court. At [44] the sentencing judge specifically took into account that the offence was the first offence.

60 The Defendant argued the existence of several mitigating factors in relation to Island Maritime were relevant to the application of s 10. It argued there was a lack of injury or harm as a result of the offence, that the offence was not part of a planned or organised criminal activity, and that Island Maritime is a Defendant of good character which has complied with international standards and promoted good environmental management strategies. It further argued that the Defendant is unlikely to reoffend in light of its reaction to the incident (circulating its entire fleet with an incident report and subsequent training and education, and its decommissioning of the system on board its entire fleet by physically separating the cargo system from the steam system) that the Defendant expressed remorse over the incident, pleaded guilty at the earliest available date, and its assistance given to law enforcement authorities after the incident. Finding on Island Maritime 61 I do not consider that s 10 should apply to this Defendant given that the offence is not trivial and the Defendant has a prior conviction for a similar offence. I must therefore consider what penalty should be imposed on this Defendant General deterrence 62 Sentences made in relation to environmental offences must embrace considerations of general deterrence: see Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357, per Badgery-Parker J at 367. In Axer, Mahoney J stated at 359: The quantum of the fines which the legislation allows to be imposed has no doubt been fixed not merely to indicate the seriousness with which such pollution is regarded but also to deter those engaged in such activities and to procure that they will take the precautions necessary to ensure that it does not occur.

Evenhandedness 63 Evenhandedness is a sentencing principle which emphasises that similar offences should receive similar penalties: Cabonne Shire Council v Environment Protection Authority (2001) 115 LGERA 304. The cases of Filipowski v Cadem Shipping Pty Limited & Anor [2005] NSWLEC 552, Filipowski v Dayton Corporation; Sang-Tae [2004] NSWLEC 325, Filipowski v Kleeman & Schiffsbeteiligungsges m.b.H & Co KG (2004) 134 LGERA 48 have some similarity to this matter.

64 Cadem Shipping involved an oil spill at Glebe Island. The amount of oil spilled was in dispute, with the defendant arguing 137.5 litres and the prosecutor 1050 litres. It was held by Talbot ACJ at [50] that a reasonable estimate of oil spilled would be 500 litres. The owners and master of the ship were prosecuted under s 8(1) of the MP Act. The cause of the incident was agreed, being contamination of a tank's contents with oil, which were discharged into the water. No satisfactory explanation was given for the fracture in the tank which led to the oil spillage. No survey of the environmental harm caused by the offence was undertaken until almost three years after the event. In relation to environmental harm, Talbot ACJ accepted at [39] the evidence of the defendant over the evidence given three years later. At [47], Talbot ACJ held that there was nothing the master could have done to prevent the discharge. The owners were fined $50,000. Talbot ACJ held at [50] that while the spill was not minor, the charge against the master should be dismissed pursuant to s 10 of the Crimes (Sentencing Procedure) Act.

65 Dayton Corporation involved an oil spill of 43 litres. A charge was brought under s 8(1) of the MP Act. The Court held the master was of good character with no previous convictions. There was a lack of evidence as to the cause of the spill and what could have been done to prevent it. The spill was relatively minor. The owner was fined $35,000 prior to discount and $25,000 after taking into account mitigating factors. The charges against the master were dismissed pursuant to s 10.

66 Kleeman involved an oil spillage of at least 100 litres. It was a s 8(1) MP Act prosecution. The owners and master entered early pleas of guilty. The Court held that the master had an unblemished record and that policies and management procedures were in place to ensure environmental protection. There was no personal fault of the master. The charge against the master was dismissed pursuant to s 10. The owner was fined $75,000 prior to discount and $50,000 after taking into account mitigating factors. Second offence of Island Maritime 67 This is the second offence for this type of offence for Island Maritime Ltd: see Filipowski v Island Maritime Limited 2005 NSWLEC 73. The parties agreed that this cannot be considered to be an aggravating factor under s 21A of the Crimes (Sentencing Procedure) Act ss2(d) in light of ss 4 and the Court of Appeal in Veen v the Queen (no 2) (1988) 164 CLR 465, R v Johnson [2004] NSWCCA 76, R v Shankley [2003] NSWCCA 253, R v Blair [2005] NSWCCA 78. A prior offence is able to be taken into account only in relation to the issue of whether the offence is an uncharacteristic aberration. 68 I do not consider there is "an attitude of disobedience to the law" (Veen No 2) because this is Island Maritime Limited's second offence of this nature, given the unusual circumstances that gave rise to the offence. 69 The Prosecutor argued that no leniency for Island Maritime should be applied because this was not a first offence. Nor should the penalty be more severe because it was a second offence. Penalty 70 In my opinion, the circumstances of the offence warrant that a penalty of $60,000 representing 5.45 per cent of the maximum penalty, should be imposed. Mitigating factors 71 There are a number of mitigating factors that should be taken into account to reduce that penalty.

Guilty plea 72 There was debate about whether the Defendant had pleaded guilty at the earliest opportunity. The offence occurred in 1999 and the plea of guilty was entered on 23 June 2006. A plea of guilty entitles the Defendant to a discount in penalty under s 22 of the Crimes (Sentencing Procedure) Act in the range of 10-25 per cent: R v Thomson; R v Houlton (2000) 49 NSWLR 383; R v Sharma (2002) 54 NSWLR 300.

73 The history of this matter originates on 20 February 2002, when the Prosecutor filed two summonses in this Court alleging breaches of s 27(1) of the MP Act arising out of the same incident to which these changes relate. These summonses were dismissed by Talbot J on 7 March 2003; see Filipowski v Island Maritime Ltd (2003) 124 LGERA 331. On 18 November 2003, two further summonses relating to the same discharge of oil on 14 November 1999 were filed by the Prosecutor, this time under s 8 of the MP Act. The Prosecutor intended to rely on the same evidence as in the proceedings dismissed by Talbot J. The Defendants filed a notice of motion in this Court seeking to stay the proceedings on the grounds of autrefois acquit or that the proceedings were an abuse of process. This application was dismissed by Bignold J on 9 July 2004; see Filipowski v Island Maritime Ltd (2004) 135 LGERA 229. The Defendants then appealed to the NSW Court of Criminal Appeal, which upheld the decision of Bignold J and dismissed the appeal; see Island Maritime Ltd v Filipowski [2004] NSWCCA 453. The Defendants then appealed to the High Court of Australia. The Full Court of the High Court (see Island Maritime Ltd v Filipowski (2006) 80 ALJR 1168) held that the plea of autrefois acquit was unavailable, and a stay of proceedings inappropriate. The matter was remitted to this Court for the trial to proceed on the s 8 summonses, being the cases before me now.

74 The Defendant argued that it was not until the matter had returned from the High Court that it had an opportunity to enter the plea in the current prosecution. It entered that plea promptly on the next callover before the Court after the matter was returned from the High Court. The Defendant argued it should not be penalised or punished for exploring avenues of appeal that were properly open to it. 75 The Prosecutor does not accept that there has been a guilty plea at the earliest opportunity in light of that history. It argued that by exhausting all avenues of appeal available to the Defendant, the conclusion of the matter was protracted by two years at least, significantly impacting upon the costs expended by the Prosecutor. Counsel for the Prosecutor relied on Dunford J in R v Adler [2005] NSWSC 274 to argue that a reduced penalty of 15 per cent should apply as it did in that case. 76 I consider the Defendant is entitled to the full discount for the early plea of guilty. It was entitled to exercise its appeal rights and when the legal position was clear as a result of the High Court's decision on the special leave application it entered a plea of guilty at the next call over in this Court. 77 The Defendant Island Maritime Pty Ltd has expressed contrition and remorse through the affidavit of Captain Anil Singh and I accept his statements to that effect. 78 There has been full cooperation with the Prosecutor and other authorities in relation to the incident and the investigation and clean up. Steps have been taken to prevent a recurrence of the offence. 79 In all the circumstances I think that the Defendant Island Maritime's penalty should be discounted by a total of 30 per cent and consider that a fine of $42,000 is appropriate. 80 The Defendants have agreed to pay the Prosecutor's costs which must include the costs reserved for the notice of motion for a stay before Bignold J on 9 July 2004.

Orders 81 In matter no 50101 of 2003 the Court orders that:

The Defendant is convicted of the offence with which it is charged.
The Defendant is fined the sum of $42,000 to be paid to the Registrar of the Court within 28 days of today's date.
The Defendant must pay the Prosecutor's costs of the proceedings against it, as agreed or assessed.
The exhibits may be returned. 82 In matter no 50102 of 2003 the Court orders that:
The offence is proved.
Pursuant to s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 without proceeding to conviction, the charge is dismissed.
The Defendant must pay the Prosecutor's costs of the proceedings against him, as agreed or assessed.
The exhibits may be returned.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

(1993) 113 LGERA 357

(2001) 115 LGERA 304

(2003) 124 LGERA 331

(2004) 135 LGERA 229

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