Filipowski v Frey [2005] NSWLEC 661 | Case summary

JUDGMENT 1 Cowdroy J: By summons dated 24 July 2003 the prosecutor charges that on 30 April 2001 the defendant, whilst Chief Engineer of the P&O Nedloyd Fos, caused a discharge of oil from that ship into State waters in contravention of s 8 of the Marine Pollution Act 1987. The defendant has pleaded guilty to such charge and accordingly the Court is required to determine the penalty. Facts Events leading to the oil spill 2 The P&O Nedloyd Fos ("the ship") is a container vessel. Certain features of the ship which have bearing on this offence should be explained. 3 The deck of the ship is surrounded by a barrier about 20 cm high known as a fishplate. About halfway down the length of the ship, above the level of the fishplate, is an oblong aperture known as a freeing port. The freeing port is approximately one metre in width, and allows any excess water which collects on the ship's deck to escape overboard. 4 The ship contains four fuel tanks, namely the No 1 port tank, the No 1 starboard tank, the No 2 port tank (capacity 437.9 m3) and the No 2 starboard tank (capacity 436.2 m3). The ship also has an overflow tank with a capacity of 13 m3. 5 On 30 April 2001 the ship was berthed at No 1 Brotherson Dock in Port Botany. The starboard side of the ship was adjacent to the dock. At approximately 8.30 am, the bunker barge Esar Sydney ("the barge") came alongside the port side of the ship. Bunkering operations occurred between 9.00 am and 11.00 am after which the barge left to refill its tanks. 6 The barge resumed bunkering at the ship at approximately 1.00 pm. This bunkering operation involved No 1 port tank and No 2 port and starboard tanks. The pumping rate of fuel onto the ship was 400 t/h. When No 1 port tank reached 98% capacity the defendant closed off the valve to that tank. Bunkering continued into No 2 port and starboard tanks. 7 The defendant was monitoring the bunkering from his computer screen. When he estimated that the both No 2 tanks were at 75% capacity he walked into the Chief Mate's office to check the indicator lights. Both indicator lights were illuminated showing that 75% capacity had been reached. Under cross-examination the defendant agreed that the lights could have been illuminated for several minutes before he saw them. 8 The defendant states that he then walked to the manifold and asked the Bunker Master of the barge to reduce the loading pressure to 4 bar, to which the Bunker Master agreed. This part of the defendant's evidence is disputed by the prosecutor and is contradicted by the affidavit evidence of the Master and the Bunker Master of the barge, each of whom deposed that no request to reduce the loading pressure was ever made. 9 The defendant says that the ship did not have a gauge to measure the flow rate but only a pressure gauge. The defendant stated that in his experience reducing the pumping rate to 4 bar would result in an approximate pumping rate of 50 m3/hr. The defendant says he told the crewmember at the manifold to watch the loading pressure closely to ensure it remained at 4 bar. 10 The defendant says that he then opened No 1 starboard tank so that all three tanks were receiving fuel oil. About three minutes later he checked the loading pressure at the manifold which he said was "correct". He returned to his office and continued to monitor the bunkering on his computer screen. 11 The defendant deposed that shortly afterwards while he was watching the computer display, the screen jumped suddenly to show full capacity and an alarm for the overflow tank appeared on the screen. The defendant says that it usually requires between 30 minutes and 1 hour to reach full capacity after the 75% alarm but on 30 April 2001 it happened after only five minutes. When he checked the 95% alarm indicator lights in the Chief Mate's office later that afternoon, they were not illuminated. 12 The defendant says that he immediately called the watchman at the bunker manifold on the ship's telephone and told him to give the signal to the barge to cease all bunkering. The evidence of the Master of the barge is that the defendant himself, not a crewmember, signalled to the barge to stop pumping. 13 The defendant then shut the valves for the No 2 tanks from the Chief Mate's office and opened the valve on the main overflow tank in order to reduce the pressure as quickly as possible. As a result fuel spilled onto the deck from the overflow tank. Approximately 0.8 t of fuel spilled onto the deck of the ship. The fishplate prevented the oil from escaping overboard. 14 The defendant informed the engine room to request clean up procedures immediately and informed the ship's Master of the spill. Clean-up operations 15 Officers of the Sydney Ports Corporation ("SPC") boarded the ship at about 2.30 pm, following notification of the discharge. Ross Gibson, the SPC Shift Master, observed fuel oil on the deck of the ship which was flowing aft towards the accommodation section. Approximately nine crewman using a small amount of sand and sawdust and some bags of absorbent pads, were attempting to prevent the oil from spilling overboard. The crew were scooping the oil with shovels and buckets into spill trays on the port sides of the ship. Mr Gibson believed that progress was being made in the clean up operations, but deposed that the resources available to the crew were insufficient and that the crew lacked direction. 16 At approximately 5.00 pm heavy rain began to fall and oily water began to pool in front of the accommodation area. The efforts of the crew were then directed to preventing the oily water from flowing over the fishplate. At this time large quantities of absorbent boom and absorbent pads were able to contain the oil. 17 At around 6.30 pm the SPC nightshift relieved the SPC officers who had been working on the ship following the oil spill. Mr Stewart Blake, SPC Marine Supervisor on the nightshift, directed that an oil containment boom be placed around the ship. 18 By this time water heavily contaminated with oil had pooled to a depth of 250 mm on the deck. The ship's crew and SPC officers continued to lay oil absorbent boom and pads over the exposed oil to prevent it escaping over the side of the ship. At approximately 7.30 pm shore labour arrived to assist in the clean-up operations. 19 At approximately 8.30 pm another downpour of rain, described as monsoon-like, began. The decks of the ship filled with rainwater and the oil-water mix flowed over the fishplate and escaped through the freeing port into the waters or Brotherson Dock. 20 The monsoon-like rain ceased after approximately 20 minutes. Mr Blake, accompanied by the ship's Master and the defendant, disembarked and walked the length of the ship along the wharf. There were patches of heavy black oil between the stern of the ship and another ship moored astern. Samples of oil were taken from the decks of the ship, the waters of Brotherson Dock and the barge. 21 Mr Blake said he told the Master that shore contractors should have been made available to help clean up the spill at an earlier time. He said that the defendant should have blocked the freeing ports after the oil spill. Under cross-examination Mr Blake agreed that he had not thought to block the freeing ports at the time and that he did not know whether the freeing ports on the ship had any covers. However he expressed the opinion that it would have been possible to block them in some way. The defendant testified that the freeing ports did not have covers attached and that it would have been impossible to block them. 22 At 6.30 am the following morning Mr Blake was relieved by David Hancock. Mr Hancock sketched the position of the ship showing the oil containment booms and the oil sheen on the water's surface between the starboard side of the ship and the wharf face. He calculated that the oil sheen stretched approximately 185 m along the wharf and that the distance between the wharf face and the starboard side of the ship was 2.5 m. 23 Shortly after SPC officers interviewed the ship's Master and the defendant. In the course of the interview both the defendant and the Master signed an authority and undertaking which authorised Mr Simon Liddy of Ebsworth & Ebsworth to accept service of process and to appear on behalf of each of them in any proceedings which might be instituted by the SPC "in respect of the said alleged discharge of oil, oily mixture or noxious substance". On the basis of these authorities the ship was allowed to leave the harbour and it sailed at approximately 11.30 am on 1 May 2001. 24 The costs to the SPC of the clean up of the oil spill (comprising material and labour costs) amounted to $18,616.80. Quantity of oil spilt 25 Dr Brian King, Chief Scientist of Asia-Pacific Applied Science Associates provided for the prosecutor an expert estimate of the amount of oil spilled from the ship on 30 April 2004. Dr King was provided with the affidavits of Mr Hancock (with attached sketch), Mr Blake and Mr Hobday. Based on the information contained in these affidavits, he estimated the surface area, percentage cover and thickness of oil on the starboard side of the ship. Using these figures, he calculated that at least 100 L of oil was spilt on the starboard side of the ship. 26 Mr Blake's evidence was that oil-contaminated water flowed over the freeing port on both sides of the ship. On the basis of this evidence Dr King has calculated the total amount of oil spilled to be at least 200 L, by doubling his starboard-side calculations. The defendant has challenged Dr King's doubling of his starboard-side estimate. Bunkering procedure 27 The defendant deposed that there were two methods by which the bunkering of the ship could be take place. The first was an automated method controlled entirely by the ship's computer. When the tank reached 98% capacity, the ship's computer automatically shut the valves to the tank. The second method required the defendant to monitor the level of the tanks during the topping up procedure and shut the valves manually when the tanks reached their desired carrying capacity. The defendant said that using either method it was intended that the Chief Engineer rely upon the ship's electronic monitoring system to gauge the amount of oil in the tanks. The defendant deposed that he preferred to use the manual method so that he could shut the valves at less than 98% capacity and reduce the risk of an overflow. 28 Attached to the defendant's affidavit as Attachment A are several documents relating to bunkering procedure. According to the defendant's affidavit, these documents were issued by the Reederei F Laeisz ("RFL"), the owner of the ship, and represent the procedure which applied to the ship at the time of the oil spill. Attachment A in fact consists of several documents relating to bunkering procedure which are not entirely consistent with each other. Some appear to be general documents whereas at least one is specifically directed to the ship. The Court is satisfied that to the extent of any inconsistency, the document headed "M/V 'Pembroke Senator'" (the former name of the ship) is the primary document relating to bunkering procedure on board the ship. 29 What is clear from all of the documents is that it is intended that bunkering on the ship take place in two stages. The first stage is the filling of the tanks to a capacity of 75%. The allowable pumping rate for this stage is relatively high. The second stage is the "topping up" of a tank from 75% to its safe carrying capacity, which, it appears, is somewhere between 95% and 98% of the total tank capacity. The topping up of a tank occurs at a substantially lower pumping rate, presumably to minimise the risk of an overflow. 30 The first page of Attachment A is entitled "Instructions for Automatic Bunkering". It states that the bunkering rate is to be 250 m3/h and the topping up rate is to be 50 m3/h. The rest of that page indicates that the top up rate is to be used after a tank has reached more than 75% capacity. 31 The second page of Attachment A indicates that both an automatic and a manual method of topping up can be used. It appears to support the defendant's evidence that using the automatic top up method the tank valves close automatically, whereas using the manual method the Chief Engineer shuts the valves when the tank reaches the appropriate level. It would appear from the document that both systems utilise the electronic monitoring system. 32 The third page of Attachment A reads at the top "M/V 'Pembroke Senator'". That page states that the maximum bunkering rate is to be 350 m3/h and a max of 5 bar, and that the topping up rate is to be 50 m3/h. The Court is satisfied that these were the appropriate bunkering rates for the ship. 33 Attachment B to the defendant's affidavit is a document entitled "Bunker Plan". This document formed part of the Shipboard Oil Pollution Emergency Plan ("SOPEP"). A SOPEP is a plan required for each merchant ship by an international convention. The Bunker Plan states that during bunkering procedure:- *Assistant Engineer is standing by in engine room at the bunker valves. *Motorman is checking tank levels by manual sounding. 34 On the basis of these and other documents, Peter Edwin Burge, a consultant marine engineer, marine surveyor and marine management consultant provided a report for the prosecution relating to the actions taken by the defendant during bunkering on 30 April 2005. Mr Burge's report stated that manual soundings are the most accurate and infallible method of ascertaining the tank level and that the SOPEP and company directives spell out clearly that manual soundings are to take place. Mr Burge stated that the defendant's conduct of the bunkering operations gave rise to a "fairly predictable likelihood of spillage". 35 The defendant said that although the ship had the capacity for manual soundings, the sole purpose of the electronic monitoring system on the ship was to remove the need for manual soundings. As a secondary check to the computer display, indicator lights in the Chief Mate's office illuminated when each tank reached first 75% and then 95% capacity. There was also a gauge on the manifold of the ship which displayed the loading pressure. 36 The defendant testified that the document contained in the SOPEP was only a guideline and that as Chief Engineer he was entitled to adapt it to the circumstances on a particular ship. The defendant said he had always monitored levels electronically on ships where this technology existed and that manual soundings were used only occasionally to check the calibration of the electronic system. The defendant testified that he had never encountered a problem with the electronic monitoring system before the spill on 30 April 2001. 37 The defendant said that as a secondary check, indicator lights in the adjoining Chief Mate's office lit up when each tank reached first 75% and then 95% capacity. There was also a gauge on the manifold of the ship which enabled the crew to determine the loading pressure. Attached as Appendix C to the defendant's affidavit is the bunkering plan prepared for 30 April 2001. The defendant deposes that this bunkering plan was acceptable and complied with the ship's required bunkering procedure, including the maximum top-up rate of 50 m3/h. 38 The prosecutor has disputed the validity of the reducing the pressure to 4 bar as a means to reduce the pumping rate to 50 m3/h. The evidence of Mr Burge is that "the transfer pressure is not a measure of the pumping rate". The prosecution repeatedly indicated to the Court that the pumping rate and the transfer pressure were not the same. However, this does not necessarily contradict the defendant's evidence that there was a relationship between the pumping rate and the transfer pressure. The Court repeatedly requested clarification from both parties on this issue, however no explanation was forthcoming. As a result it appears to the Court that there is in fact a relationship between the transfer pressure and the pumping rate, but the nature of this relationship remains entirely unclear. Prosecutor's submissions 39 The prosecutor submits that, upon the evidence, there were several deficiencies for which the defendant, as Chief Engineer, is liable. The prosecutor submits that the rate of bunkering was excessive. One of the instructions for bunkering for the ship referred to heavy fuel oil bunkering at 350 m3/h whereas the Master's requisition for bunkering signed by the defendant shows the rate of delivery at 400 t/h. In addition, in view of the denials by the Bunker Master and the Master of the barge concerning the request to reduce the pressure, the prosecutor submits that the Court should not accept that the flow rate was ever reduced from the maximum pumping rate. 40 The prosecutor submits that to observe the computer screen only and not to similarly have watched the warning lights was careless. Additionally the prosecutor submits that the defendant should have undertaken manual soundings to avoid any risks of overflow. 41 The prosecutor also submits that more should have been done by the Chief Engineer to clean-up the on-deck spill. The prosecutor says that the quantity of clean up equipment carried or used was inadequate and that had additional supplies not been provided by SPC, a more significant pollution event could have occurred. Pursuant to the ship's instructions, it was the Chief Engineer's responsibility to ensure sufficient clean-up materials were on board. 42 The prosecution submits that the heavy fuel oil constituted a dangerous chemical and that all necessary steps should have been taken to prevent the overflow. It relies upon Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357. Defendant's Submissions 43 The defendant submits that the oil spill occurred as a result of a mechanical error, namely the failure of the warning lights in the Chief Mate's office to illuminate. He says that he should have checked the lights before bunkering proceeded, but that it was a minor omission, not a serious or systematic deficiency as contended by the prosecutor. 44 The defendant submits that the discrepancy between the evidence of the defendant and the evidence of the Bunker Master and the Master of the "Esar Sydney" can be explained by reason of the lapse of time since the offence was committed. The defendant's counsel also submits that no cross-examination took place of the defendant concerning such discrepancy and that therefore it should be determined in favour of the defendant. 45 As to the quantity of fuel oil which polluted the waters, the defendant submits that the evidence of Dr King should be treated with caution since he did not visit the site and his estimates were provided solely upon the observations of others. In addition since there was evidence that the ship was listing to starboard, it could not be safely assumed that the discharge was equal on both sides of the ship. Accordingly, Dr King's decision to double his estimate of the starboard side calculations should not be accepted as an accurate estimate of the overflow of oil. 46 The defendant submits that the Court has recognised the difficulties in estimating quantities of oil spilt in circumstances such as the present, and refers the Court to Morrison v Ausmarine Fisheries Pty Ltd and Miato (1995) 88 LGERA 442. Further the defendant submits that in the absence of evidence of the actual amount of the discharge the quantity of the pollutant which entered the waters should be regarded at the lower end of the estimate: see Filipowski v Island Maritime Limited; Majgaonkar [2005] NSWLEC 73 at [28]. 47 The defendant submits that all necessary steps were taken to clean up the oil on the deck and that the involvement of nine crewman, using pads and booms, would have been satisfactory and probably would have prevented oil from escaping over the sides were it not for the monsoon rain that commenced to fall at around 8.00 pm on 30 April 2001. 48 The defendant submits that a plea of guilty was entered at the earliest opportunity following the confirmation of effective service by the Court. Accordingly it is submitted that in accordance with the principles in R v Thomson; R v Houlton (2000) 49 NSWLR 383 a discount of penalty should be allowed. 49 The defendant has also made an application that no conviction be recorded against him as provided by s 10 of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Procedure Act"). The basis of the application is the defendant's unblemished history at sea. The defendant has been at sea with the same employer since 1968. He became a chief engineer in 1980 and has never been convicted of any environmental offence. It is submitted that the discharge occurred in consequence of a mechanical failure not through the defendant's inattention and that the defendant acted promptly to confine the spill to the decks of the ship. The defendant submits that but for the onset of the monsoon-like rain, the pollution event would not have occurred. Findings 50 Section 8(1) of the Marine Pollution Act 1987 imposes strict liability as provided by s 8(1) which relevantly 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 - $500,000, or … The offence is established if it is proved beyond reasonable doubt that a defendant caused the discharge. A plea of guilty involves an admission of the essential legal ingredients of the offence: see R v O'Neill [1979] 2 NSWLR 582 at 588 (per Moffitt ACJ). Accordingly by the defendant's plea of guilty the elements of the charge are admitted. The question remaining for the Court is the appropriate penalty to be imposed on the defendant for the offence. 51 It is clear from the documents provided by the defendant that as Chief Engineer, the defendant was responsible for bunkering operations. Documents relating to the ship specified the bunkering procedure to be followed, including the safety precautions to be taken. 52 The Court cannot accept the defendant's submission that his behaviour did not reveal any serious deficiency in bunkering procedure for which he was responsible. The defendant chose not to use the fully automated bunkering procedure, instead electing to close the valves manually. The manual operation of the valves overrode the automatic safeguards which existed when the ship's computer controlled the bunkering operation. Whilst the Court accepts that it was open to the defendant to elect to close the valves manually, such decision placed an onus upon him to ensure that appropriate alternative safeguards were adopted. 53 At the very least, the procedure adopted would have required placing a crew member in the Chief Mate's office to notify the Chief Engineer when the warning lights were illuminated. Doing so would have provided a minimum basic check on the calibration of the computer display. Although the defendant checked the lights in the Chief Mate's office, he admitted that they could have been illuminated for some time before he saw them. This necessarily prevented the defendant from using the warning lights as a check upon the accuracy of the computer display. 54 The Court notes the report made by the defendant and the ship's Master to the ship's owner on 20 May 2001 which stated: The fault that led to the overflow was based in human imperfection. We should not have relied as much on the screen indicator and if the 95% alarm lamps had been working properly we would have been able to stop pumping in time. Furthermore, we should have focussed more on the Hoppe tank gauge and not so much on the screen indicator which does, however, show the tank content much more accurately than the Hoppe tank gauge. Tanks 2, port and starboard, were filled up to the level they were in order to ensure that the rest would fit into tank 2, starboard, because the filling valve could only be closed by hand in that case. 55 The Court accepts the defendant's evidence that the warning lights did not illuminate when the tank reached 95% capacity as they should have. However since he was not in the Chief Mate's office when the tanks reached 95% capacity, it is immaterial whether those lights were illuminated. Unless someone had been stationed to watch the lights as a check upon the computer display, their malfunction was irrelevant. 56 The Court also considers that in electing to operate the valves manually, the defendant was obliged to adhere strictly to the ship's maximum allowable flow rates, measured accurately by an appropriate gauge specifically measuring the flow rate. In adopting a bunkering rate of more than 400 m3/h the defendant significantly exceeded the maximum rate of 350 m3/hour. 57 There is a factual dispute relating to the top up rate used by the defendant. The defendant deposes that he requested of the barge that the loading pressure be reduced to 4 bar which represented an approximate flow rate of 50 m3/h. The defendant has admitted that he does not have a recollection of events because of the passage of time and has relied on reports prepared at the time of the oil spill. Attached to his affidavit is a report which he submitted to his superiors on 2 May 2001 which states that "transfer pressure was reduced by the bunker barge to 4 bar, as we had advised". 58 The defendant's evidence in this respect is contradicted by the affidavit evidence of the master and bunker master of the barge. Unfortunately it was never put to the defendant in cross-examination that he had not made such request. Similarly, the Master and Bunker Master of the barge were not cross-examined by the defendant. There has been a lapse of time of over four years in between the event in question and the swearing of affidavits in these proceedings, which adds a further complicating factor. 59 However the onus of proof remains on the prosecutor to prove the version of events on which it relies. Given the highly unsatisfactory state of the evidence the Court concludes that it cannot be satisfied that the prosecution has proved beyond a reasonable doubt its version of the relevant events. Accordingly the Court considers the version offered by the defendant namely that he requested the loading pressure be reduced to 4 bar, should be accepted. 60 As mentioned above the precise relationship between the loading pressure and the flow rate was not explained. The Court accepts that there is some correlation between the two. However from the evidence of the prosecutor it is clear that any correlation could only be approximate. The Court considers that it was unacceptable for the defendant to rely upon any approximate flow rate which he might have been able to estimate from the reading on the pressure gauge. He was required to ensure that the correct loading rate was in fact adhered to. 61 Furthermore, it was essential that the required loading rates were clearly and unequivocally communicated to the Bunker Master of the barge before any bunkering took place. On neither of the contested versions of the facts did this take place. 62 Whilst accepting that it would have been prudent if manual soundings had been carried out, the Court is not satisfied that such soundings were required by the company's bunkering procedure. The company documents relating to the ship (in contrast to the more general documents) did not indicate that manual soundings were required if other checks were in place. The Court accepts that the installation of a computerised bunkering system was designed specifically to avoid the need for regular manual soundings and that, provided some other secondary check mechanism (such as the warning lights) existed, manual soundings were not required. Events following the discharge 63 The Court accepts that following the discharge the defendant took prompt action to begin a clean-up of the on-deck spill. On the basis of Mr Gibson's evidence, the Court accepts that the crew made a reasonable effort to prevent the oil going overboard into the docks. However there are a number of factors which suggest to the Court that the efforts made by the defendant were not satisfactory in the circumstances. 64 Mr Gibson's evidence was that there was insufficient absorbent material available on the ship and that the crew undertaking the cleanup lacked direction. Mr Blake gave evidence that he was surprised at the amount of oil remaining on deck when he began his shift, several hours after the discharge had occurred, and that he was concerned at the length of time which elapsed before the contract cleaners arrived. 65 The defendant said that once he had requested shore labour there was nothing further he could do to hasten the clean up. The Court does not accept such submission. Had the defendant accorded the clean up of the on-deck spill the urgent attention it demanded, the Court is satisfied that more and/or earlier shore labour assistance, as well as additional clean up materials, could have been provided. 66 The defendant was engaged in further bunkering operations that evening before the discharge had been fully cleaned up. In addition in his report to his superiors, the defendant indicated that on-shore labour was requested as a result of SPC's directive that the ship could not leave until clean up occurred, "because we would not have been able to finish the work in tine with onboard resources". The defendant's prime concern with respect to the clean-up was to ensure that the ship departed on time rather than to minimise the risk to the marine environment. 67 The Court accepts that had it not been for the monsoon-like rain, the overflow into Brotherson Dock would not have occurred. However this does not relieve the defendant of his responsibility. The defendant was the officer in charge of the bunkering and of the spill response. A significant quantity of oil had been discharged onto the deck of the ship. It was incumbent upon the defendant to direct all of his attentions towards cleaning up this oil as soon as possible, to ensure that there would be no opportunity for it to escape overboard. While the oil remained on deck there was a possibility that it could spill into the water, and the defendant was required to act quickly and to devote his full attention to cleaning it up. The fact that the specific advent of the monsoon-like rain was not foreseen is no excuse for having failed to do so. It appears to the Court that the defendant did not appreciate the urgency of the situation and the importance of his role. Quantity of oil 68 The Court is aware of the difficulties which may be experienced in estimating the volume of an oil discharge: see Morrison v Ausmarine Fisheries at 444. However the Court accepts that Dr King's calculations of the spill on the starboard side, namely that at least 100 L of oil was spilt, were reasonable. 69 The Court is unable to conclude beyond a reasonable doubt that an equal amount flowed from the port side where calculations of the size of the affected area could not be made. Given the evidence that the ship was on a list to starboard, it would be reasonable to assume that the amount of oil escaping from the port side was less than that escaping from the starboard side. In the absence of any further evidence the Court cannot estimate what the spill from the port side may have been. 70 Accordingly the Court considers that for the purposes of these proceedings, it can be assumed that the volume of oil discharge was at leat 100 L. Environmental Harm 71 There is no direct evidence of environmental harm resulting from the discharge. However the Court accepts that heavy fuel oil should be regarded for the purposes of the Marine Pollution Act as a dangerous chemical with the potential to cause significant environmental harm. The handling of such a dangerous substance imposed a significant obligation on the defendant to take all reasonable precautions to avoid a spill: see Axer Pty Ltd v Environmental Protection Authority at 367. The circumstances of the bunkering required the most stringent care and in this respect, the offence is not trivial. Early plea of guilty 72 Section 22 of the Sentencing Procedure Act authorises a reduction in penalty for an early plea of guilty. The prosecutor strongly resists the submission by the defendant that he is entitled to a discount for an early plea. 73 The prosecutor instituted proceedings against the Master, the defendant and the owners of the ship. Prior to service upon Mr Liddy of the proceedings against the defendant, the defendant revoked the authority of Mr Liddy to accept service on his behalf. At that time service had already been effected on the owners of the ship. The consequence of the revocation was that the prosecutor's service on Mr Liddy was ineffective: see Filipowski v Frey [2004] NSWLEC 182. 74 Following determination that service was ineffective, the prosecutor made an application for an order that informal service had been effected pursuant to Pt 8 r 8 of the Land and Environment Court Rules ("LEC Rules"). McClellan J determined that application in favour of the prosecutor: see Filipowski v Frey [2005] NSWLEC 166. The parties accept that the deemed date for service was 1 November 2004. 75 On 19 May 2005, a month after McClellan J delivered judgment in respect of the application for informal service, the defendant appeared in these proceedings. 76 The proceedings came before the Court again on 20 May 2005 for directions, on which date the proceedings were adjourned. On the next occasion on which the matter was listed, namely 24 June 2005, the defendant entered a plea of guilty. 77 It is against this background that the Court is required to determine whether the plea of guilty was entered at an early stage of the proceedings which would entitle the defendant to a reduction in penalty. 78 In Siganto v The Queen (1998) 194 CLR 656, Gleeson CJ, Gummow J, Hayne J and Callinan JJ stated (at 663-4 [22]-[23]): A person charged with a criminal offence is entitled to plead not guilty, and defend himself or herself, without thereby attracting the risk of the imposition of a penalty more serious than would otherwise have been imposed. On the other hand, a plea of guilty is ordinarily a matter to be taken into account in mitigation; first, because it is usually evidence of some remorse on the part of the offender, and second, on the pragmatic ground that the community is spared the expense of a contested trial. The extent of the mitigation may vary depending on the circumstances of the case. It is also sometimes relevant to the aspect of remorse that a victim has been spared the necessity of undergoing the painful procedure of giving evidence. 79 In these proceedings the defendant's plea of guilty has had the consequence that the hearing has been uncontested. However, the Court is entitled to have regard to the background of the proceedings to determine whether the community has benefited as a result of the defendant's plea. 80 Whilst Siganto referred to the fact that a plea of guilty is "usually evidence of some remorse on the part of the offender", subsequent decisions have tended to suggest that an expression of remorse raises separate considerations. In Cameron v The Queen (2002) 209 CLR 339 Kirby J said (at 359): The discount for a plea of guilty to the charge brought against the accused is to be distinguished from a discount for a spontaneous and immediate expression of remorse conducive to reform and for immediate co-operation with investigating police. The latter has always been treated as deserving of such recognition in the sentencing of an accused. In many cases such feelings of repentance will continue and manifest themselves in any early plea of guilty that is adhered to at the trial. Obviously, the timing of any plea of guilty has a large bearing on the credit that should be given to the prisoner. A plea of guilty at the last moment (as on the day set down for the trial) will ordinarily attract a smaller discount in sentence than one that is entered at the first reasonable opportunity. But even a belated plea will normally attract a discount. 81 At 360 his Honour said: The true foundation for the discount for a plea of guilty is not a reward for remorse or its anticipated consequences but acceptance that it is in the public interest to provide the discount. Nevertheless, where genuine remorse is established to the satisfaction of the sentencing judge, it may be in the public interest to mitigate punishment further as a reinforcement for the prisoner's resolve to avoid repetition of such conduct in the future and as an example to others. However, "remorse" is not, as such, a precondition for the provision of a discount for a plea of guilty. There are other features of the public interest that need to be given weight. 82 McClellan J in Filipowski v Frey [2005] NSWLEC 166 found that the defendant withdrew his authority after he was aware of the proceedings. His Honour said at [31]: Given the lapse of time since the proceedings were commenced and the fact that the withdrawal of the authority occurred after Mr Liddy was aware of the proceedings I am satisfied that the motivation for withdrawing authority given to Mr Liddy was to avoid service of the Summons. 83 The inference must be drawn that the defendant was seeking to frustrate the prosecution against him. Having provided the authority, the defendant was legally entitled to withdraw it: see Filipowski v Frey [2004] NSWLEC 182. Nonetheless, such conduct amounted to an attempt by the defendant to evade prosecution. 84 The prosecutor has argued that any utility of a plea of guilty has been negated in this case by the defendant's conduct, which required the prosecutor to approach the Court on two previous occasions before this prosecution could proceed. The Court is satisfied that the authority was revoked to frustrate the proceedings and that this conduct shows the defendant's lack of remorse for his actions. The defendant's conduct was deliberate and calculated. Nevertheless the plea of guilty has removed the need for a contested hearing with respect to the defendant's guilt. It therefore retains its utilitarian value to the administration of justice. The defendant is entitled to recognition of this fact in the penalty to be imposed by a reduction in sentence of 10%. Section 10 application 85 As noted above, the defendant has made an application under s 10 of the Sentencing Procedure Act that a conviction not be recorded against him. 86 In Thorneloe v Filipowski (2001) 52 NSWLR 60 the Court of Criminal Appeal determined that it was relevant to the exercise of the discretion granted by s 10 of the Sentencing Procedure Act to consider whether the defendant could have done more to prevent the offence. In that case the submission was made the there was no utility in convicting and punishing a blameless Master when the ship owner had already been held criminally responsible. Spigelman CJ rejected the submission, stating that the submission failed to acknowledge the "distinctive roles of the Owner and the Master with respect to the operation of ships": see at 73. However, his Honour added at 74: 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. 87 At 76 [178] his Honour said: It is, in my opinion, relevant to the exercise of the discretion under s 10 of the Sentencing Act, in the context of a strict liability offence, to consider what the applicant for the benefit of s 10 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. 88 In the present case the Court is satisfied that the defendant could have done more to prevent the discharge. The circumstances of the spillage showed that on this occasion there was a departure from acceptable practices in relation to the bunkering of the ship. Additionally the Court finds that the clean up operations could and should have been carried out with greater expedition. The Court does not consider that it is appropriate to grant the benefit of s 10 to the defendant in these circumstances. Penalty 89 In R v Thomson at 396 [55] Spigelman CJ said: This Court has always recognised that the purposes of punishment include a wide range of incommensurable, and sometimes conflicting, objectives - deterrence, retribution, rehabilitation, and public condemnation - which must be brought together by a sentencing judge in what the Full Court of the Supreme Court of Victoria has aptly described as an "instinctive synthesis": R v Williscroft [1975] VR 292 at 300 . 90 The maximum penalty for an individual described for this offence is $220,000. The Court takes into consideration the fact that there was no substantial environmental harm and the fact that, but for the exceptional rainfall, the offence may have been avoided. The Court considers that the appropriate penalty in this instance is $40,000, reduced by 10% because of the plea of guilty to the amount of $36,000. Orders 91 The Court makes the following orders:

The defendant is convicted of the offences charged.
The defendant is fined the sum of $36,000.
The defendant is to pay the costs of the prosecutor in accordance with s 253 of the Criminal Procedure Act 1986 unless an application is made for a different order within 14 days.
The exhibits be returned.

Filipowski v Frey

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Judgment (10 paragraphs)

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Cases Cited (9)

Cited By (6)