Morrison v Defence Maritime Services Pty Ltd and Coates

Morrison v Defence Maritime Services Pty Ltd and Coates - [2007] NSWLEC 421 - NSWLEC 2007 case summary — Zoe

[11]

JUDGMENT 1 HIS HONOUR: In November 2002, the owner, master and chief engineer of the 42.7 metre twin screw vessel "Seahorse Horizon" were, respectively, Defence Maritime Services Pty Ltd, Mr Allen Coates and Mr Danny Mahon. Each has pleaded guilty to a charge of polluting the waters of Sydney Harbour on 5 November 2002. The charges against the owner and master are under s 8 of the Marine Pollution Act 1987. The charge against the chief engineer is under s 8A. This judgment is concerned with penalty in relation to the owner and master only. Penalty in relation to the chief engineer is the subject of a separate judgment. The evidence against each defendant is not identical. For example, the evidence of the chief engineer is not in evidence against the owner and master, and the evidence of the master is not in evidence against the chief engineer. The prosecution's evidence in chief against all three was presented at one hearing, after which the evidence for the owner and master and the evidence for the chief engineer were heard separately. 2 The owner pleaded guilty to a charge that on 5 November 2002 it was the owner, and the master pleaded guilty to a charge that on that day he was the master: …of a ship named Seahorse Horizon from which a discharge of oil occurred into State waters namely the waters of Sydney Harbour, in contravention of Section 8 of the Marine Pollution Act 1987. 3 Section 8(1) of the Marine Pollution Act 1987 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 (b) if the offender is a body corporate - $10 000 000. 4 The movement of the vessel on the day in question may be briefly described as follows, although it will be necessary later to go into more detail. At 0845 hours the vessel was un-slipped from Goat Island and various trials were carried out within Sydney Harbour when an overheating problem in the port shaft and a drop in the port header tank were observed. At 1000 hours the vessel was docked at Garden Island where a problem was detected. At 1053 hours the vessel left for Goat Island for the purpose of slipping it there in order to investigate the problem. The vessel stood at the approaches to the slip at Goat Island for a time. However, due to the congestion at the slipway and a falling tide it could not be slipped at that time. The vessel therefore proceeded to the naval establishment HMAS Waterhen at Balls Head Bay, where it was secured at 1140 hours and an oil containment boom was placed around the vessel.

[12]

5 The prosecutor's case is that oil discharged from the vessel at or prior to the time it was at Garden Island. The owner's and master's cases are that the only discharge (at least of which they were aware) occurred after the vessel was boomed at HMAS Waterhen. 6 As to the standard of proof, in Weininger v The Queen (2003) 212 CLR 629 at [18] Gleeson CJ, McHugh, Gummow and Hayne JJ said: In R v Olbrich (1999) 199 CLR 270, the Court examined a number of questions relating to fact finding in sentencing, usually discussed under the rubric of the onus and standard of proof in sentencing. As the joint reasons point out at 281 [25], [r]eferences to onus of proof in the context of sentencing would mislead if they were understood as suggesting that some general issue is joined between prosecution and offender in sentencing proceedings . The Court adopted what was said by the majority in the Court of Appeal of Victoria, in R v Storey [1998] 1 VR 359 at 369, that a sentencing judge: may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. On the other hand, if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities. EVENTS PRIOR TO 5 NOVEMBER 2002 7 The vessel was slipped at the Goat Island slipway in October 2002 for a scheduled refit and overhaul. The overhaul included an examination of the propeller tail shaft bearings located within the stern tubes. The bearings were found to be within acceptable tolerances so the shafts and stern seals were replaced. The vessel was un-slipped and refloated on 18 October 2002. When the vessel was at sea the engines were stopped and the engineers investigated an overheating problem with the starboard stern tube bearing and tail shaft. An oil slick was observed on the port side coming from the vicinity of the propeller shafts. The Master, Allen Coates, recorded that 10 to 15 litres of oil was lost in the ocean. 8 The vessel was re-slipped at Goat Island on 21 October 2002 where it was found that the forward starboard bearing had been damaged. A new bearing was installed, the stern tube was reassembled, refilled, primed with oil and fitted with new seals. The vessel was un-slipped on 29 October 2002.

[23]

19 The master's evidence was that he was not told at Garden Island that there was a leak to the sea. A report prepared by the master late on the afternoon of 5 November 2002 recorded: On completion of the trials at 1000h the vessel was made fast STBD side to FBE No 2 berth. The port shaft temperature was reported at an unsatisfactory level (58C compared to the STBD shaft 40C) the C/eng reported air in the oil cooling system and the level in the port header tank had dropped indicating a leak to the sea. 20 The words "indicating a leak to the sea", the master testified, were not intended as a statement that the vessel was leaking, but rather was an inexact way of conveying that in hindsight a drop in the header tank can be suggestive of an oil discharge from the system which warranted precautionary steps being taken. The prosecutor submitted that I should reject that testimony as a recent invention. In support of that conclusion the prosecutor referred to the report of the incident dated 7 November 2002 by Mr Brett Heath of the Sydney Ports Corporation that (at Garden Island) "a very slight leak was detected from the stern shaft seal". The report does not identify the source of that information. The prosecutor submitted that it should be inferred that the master had told Mr Heath this, given that Mr Heath formally interviewed the master on 5 November 2002 after the incident. However, the master denied doing so and no such statement by the master appeared in Mr Heath's record of the master's interview. Mr Heath's report stated that he boarded the ship to conduct a record of interview with the master and the chief engineer. This raises the possibility that the latter may have been the source of the said statement in the report. In cross examination Mr Heath agreed with a question that this statement was what he "deemed" to have happened. It was submitted for the defendants that this evidences that it was merely his perception. I do not accept that submission; the question did not go so far and left the issue hanging.

[42]

41 Section 21A(3) of the Crimes (Sentencing Procedure) Act 1999 prescribes mitigating factors which the Court must take into account when determining penalty. The following are relevant: · the damage caused by the offence was not substantial; · the offence was not part of a planned or organised criminal activity; · the offender does not have any record (or any significant record) of previous convictions; · the offender was a person of good character; · the offender is unlikely to re-offend; · the offender has good prospects of rehabilitation; · the offender has shown remorse for the offence; · the offender pleaded guilty (as provided by s 22); and · assistance by the offender to law enforcement authorities (as provided by s 23). Damage caused by the offence 42 The damage caused by the offence is to be assessed by reference to the quantity of oil discharged. A very slight amount of oil was noticed at Garden Island by the chief engineer. About 5 to 15 litres were discharged at HMAS Waterhen, of which a small proportion escaped outside the boomed area. Prior to the discharge of oil at HMAS Waterhen, an oil containment boom was deployed around the vessel and after the discharge occurred the clean-up commenced promptly with absorbent pads. On the findings that I have made, only minor environmental harm was caused. Offence not part of a planned or organised criminal activity 43 There is no suggestion that the offence was part of a planned or organised criminal activity. Record and good character 44 The master and the owner have no prior convictions. They are of good character. The master has a long and respectable employment history. Unlikely to re-offend 45 In my opinion, the master is unlikely to re-offend. He has learned from this experience. The master is still employed by the owner. It follows that the owner is also unlikely to re-offend as a consequence of any conduct of the master. Although it is difficult to say more than that about a corporation with many employees in relation to strict liability pollution offences, the prior unblemished record of the owner is supportive of the conclusion that it is unlikely to re-offend. Remorse and assistance to law enforcement or regulatory authorities 46 The master and owner cooperated with the Sydney Ports Corporation in respect of the clean-up operation: Filipowski v Cadem Shipping Pty Ltd & Anor [2005] NSWLEC 552 at [62], R v Thomson; R v Houlton (2000) 49 NSWLR 383. The master has indicated his contrition and remorse. The owner has indicated regret and contrition and that it is committed to taking whatever steps are necessary to ensure that there will be no recurrence of the incident. I accept that their evidence is genuine. Mr Heath of the Sydney Ports Corporation reported to his supervisor that the master (and chief engineer) had shown genuine concern for the situation and had followed the required steps as laid down by the Sydney Ports Corporation for such incidents. Mr Hawes, of the Sydney Ports Corporation in a report concerning the incident, stated that at all times the master and crew acted professionally and assisted and followed all Sydney Ports Corporation requests, and that the clean up was carried out swiftly and effectively. Plea of guilty 47 Section 22 of the Crimes (Sentencing Procedure) Act 1999 provides that in passing sentence for an offence on an offender who has pleaded guilty to the offence, a court must taken into account, first, the fact that the offender has pleaded guilty and, secondly, when the offender pleaded guilty or indicated an intention to plead guilty, and may accordingly impose a lesser penalty than it would otherwise have imposed. The maximum discount on penalty for the utilitarian value of an early plea of guilty is twenty five percent: R v Thomson; R v Houlton (2000) 49 NSWLR 383. In the present case, the summonses were filed on 10 October 2005 and were returnable on 2 December 2005. Guilty pleas were entered on 24 March 2006. There were earlier appearances before the Court on 4 January and 20 February 2006. The prosecutor submitted that the defendants are not entitled to any discount from the penalty because of the delay in the entry of pleas of guilty. I disagree. There should be taken into consideration that the incident was some three years old before the prosecution commenced proceedings and that there was a Christmas holiday period not long after the return of the summonses. Although the defendants did not plead guilty at the earliest possible opportunity, in the circumstances they were not particularly tardy. Their guilty pleas have served a substantial utilitarian purpose. I propose to allow a discount of twenty percent on penalty. Precautionary steps 48 The defendants referred to the evidence of the master that he relied on the professional ability of the chief engineer within his domain and pointed out that the malfunction lay within the chief engineer's domain. I accept that submission. Nevertheless the master has overall responsibility for the vessel. The object of making a master personally liable is to ensure that he will do everything he can to avoid pollution. The object of making an owner liable is to discourage the owner from taking a tolerant attitude towards officers or crew who cause pollution: Thorneloe v Filipowski (2001) 52 NSWLR 60 (CA) at [161] - [162].

[55]

[26] As Mr Gee pointed out, s 10 is not qualified. It applies to any circumstances in which a court finds a person guilty of an offence. The offences under s 8 of the Marine Pollution Act is an offence to which s 10 applies. I note in this connection a passage from the judgment of Spigelman CJ in Thornloe v Filipowski (2001) 52 NSWLR 60 at 76 as follows: 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. 54 Webb v Chung & Ors [2002] NSWLEC 135 is an example of a marine pollution case in which the charge against the master and chief engineer were dismissed pursuant to s 10. The owner was fined $35,000. Cowdroy J held that "the owner of the vessel was not aware of any defect in the stern tube lubricating system" of the vessel; "that the discharge took place in circumstances which could not have been anticipated by either the Master or the Chief Engineer"; and that "the Master and the Chief Engineer could not personally have done any more than they did to avoid the offence or the extent of the discharge" :at [26], [27] and [32]. 55 The defendants submitted that having regard to the relevant factors contained in s 21A of the Crimes (Sentencing Procedure) Act 1999, the Court would be satisfied that the factors in s 10(3)(a) and (c) are favourable to the exercise of the discretion. I accept that the defendants' character and antecedents weigh in their favour. They submitted that in light of the resultant circumstances following the spill and the nature of the unforeseen causes of the spill, there were exceptional circumstances surrounding the spill that can properly be considered under s 10(3)(d). My findings concerning the circumstances have been set out earlier and it is proper to take them into consideration. 56 The defendants submitted that the prosecution had not adduced any evidence to establish that they could have taken any additional steps to prevent the spill. I disagree. I have earlier referred to the precautionary steps that should have been taken at Garden Island. Those steps would have avoided subsequent risk of spillage and the actual spill that occurred at HMAS Waterhen.

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