Morrison v Mahon

Land and Environment Court (NSW)|2007-07-01|Before: Biscoe J

CITATION : Morrison v Mahon [2007] NSWLEC 416 This decision has been amended. Please see the end of the judgment for a list of the amendments.

PROSECUTOR: Anthony Morrison PARTIES : DEFENDANT: Danny Mahon

KEY ISSUES: Prosecution :- sentence - plea of guilty to a marine pollution charge - extent and cause of discharge of oil - whether "act" includes omission in s 8A Marine Pollution Act 1987 - whether charge limited to one act causing one discharge - whether charge otherwise impermissibly duplicitous - sentencing considerations - result offence - potential for result to occur cannot be taken into account on sentencing but proper to take into account when exercising statutory discretion whether to dismiss proceedings without proceeding to conviction - whether higher penalties ordinarily result where parliament has increased maximum penalty - parity of sentencing

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 ss 10, 21A(3), 22 Marine Pollution Act 1987 s 8A

Barbara Filipowski v Vopak Terminals Sydney Pty Ltd [2006] NSWLEC 104; Cabonne Shire Council v Environment Protection Authority (2001) 115 LGERA 304; Director of Public Prosecutions v Merriman [1973] AC 584; Environment Protection Authority v Middle Harbour Constructions Pty Ltd (2002) 119 LGERA 440; Ex parte Fitzgerald; Re Gordon (1945) 45 SR (NSW) 182; Filipowski v Arta Adhisatya Pte Ltd and Sahea [2002] NSWLEC 169; Filipowski v Cadem Shipping Pty Ltd & Anor [2005] NSWLEC 552; Filipowski v Dayton Corporation (2004) 138 LGERA 150; Filipowski v De Ocampo [1998] NSWLEC 119; Filipowski v Fratelli D'Amato S.r.l and Others (2000) 108 LGERA 88; Filipowski v Frey [2005] NSWLEC 661; Filipowski v Island Maritime Ltd; Majgaonkar [2005] NSWLEC 73; Filipowski v Mediterranean Shipping Co SA and Ors [2005] NSWLEC 159; Filipowski v Schiffsbeteiligungsges m.b.H & Co KG (2004) 134 LGERA 48; Filipowski v Wallenius Lines Singapore Pte Ltd & Anor [2002] NSWLEC 14; Hoogendoorn v MISR Shipping Company and Hassan [2001] NSWLEC 171; CASES CITED: Krakouer v The Queen (1998) 194 CLR 202; Morrison v Che Mat and Others (1997) 95 LGERA 212; Morrison v Peacock and Roslyndale Shipping Co Pty Limited [2003] NSWLEC 68; Pace Farm Egg Products Pty Ltd v Newcastle City Council (2006) 151 LGERA 260; Postiglione v The Queen (1997) 189 CLR 295; R v Hamzy (1994) 74 A Crim R 341; R v Howard (1992) 29 NSWLR 242; R v Li [2005] NSWCCA 154; R v Moussad (1999) 152 FLR 373; R v Phillips (1971) 45 ALJR 467; R v Slattery (1996) 90 A Crim R 519; R v Thomson; R v Houlton (2000) 49 NSWLR 383; R v Wilson (1979) 69 Cr App Rep 83; S v The Queen (1989) 168 CLR 266; Thorneloe v Filipowski [2001] NSWCCA 213, (2001) 52 NSWLR 60; Walsh v Tattersall (1996) 188 CLR 77; Webb v Chung & Ors [2002] NSWLEC 135; Weininger v The Queen (2003) 212 CLR 629

DATES OF HEARING: 20 - 22 February 2007; 27 - 28 February 2007, 13 March 2007; 7,8,16 and 24 May 2007

SOLICITORS: Dibbs Abbott Stillman LEGAL REPRESENTATIVES: DEFENDANT: Mr D McLure

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

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 charge against the chief engineer is under s 8A of the Marine Pollution Act 1987. The charges against the owner and master are under s 8. This judgment is concerned with penalty in relation to the chief engineer, Mr Mahon, only. Penalty in relation to the owner and master is the subject of a separate judgment. The evidence against each defendant is not identical. For example, the evidence of the master is not in evidence against the chief engineer, and the evidence of the chief engineer is not in evidence against the owner and master. 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 chief engineer pleaded guilty to the following charge: On 5 November 2002 he was the Chief Engineer of a ship named Seahorse Horizon whose act caused a discharge of oil from the ship Seahorse Horizon into State waters namely the waters of Sydney Harbour, in contravention of s 8A of the Marine Pollution Act 1987.

3 Section 8A of the Marine Pollution Act 1987 relevantly provides: (1) If any discharge of oil or an oily mixture occurs from a ship into State waters, each crew member of the ship, and each person involved in the operation or maintenance of the ship, whose act caused the discharge is 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. (2) In proceedings for an offence under subsection (1), it is sufficient for the prosecution to allege and prove that a discharge of oil or an oily mixture occurred from a ship into State waters and the crew member or person involved in the operation or maintenance of the ship committed an act that caused the discharge. …

(a) What discharges of oil occurred on 5 November 2002? (b) What act of Mr Mahon caused any of those discharges?

5 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.

6 The prosecutor's case is that oil discharged from the vessel from the time of the sea trials and that the discharge was caused by the conduct of the chief engineer. The chief engineer's case is that there were only two discharges and that they were caused by his two distinct acts: (a) his act of operating a hand priming pump while the vessel was docked at Garden Island, which caused the discharge of 10 to 20 droplets of oil; and (b) his act of operating the pump while the vessel was docked and boomed at HMAS Waterhen, which caused the discharge of 5 to 10 litres of oil.

7 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 8 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.

9 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 and the stern tube was reassembled, refilled, primed with oil and fitted with new seals. The vessel was un-slipped on 29 October 2002.

10 The vessel re-entered service and returned to operate from its base at Jervis Bay. Next day, 30 October 2002, when the vessel was at sea, the shaft temperature alarm activated and it was discovered that the port shaft system was operating at a high temperature. Mr Coates was the master and Mr Mahon was the chief engineer on that occasion.

11 The vessel returned to Jervis Bay before returning to Sydney where it was slipped at Goat Island on 1 November 2002. The port tail shaft was withdrawn and it was found that the port forward stern tube bearing had sustained similar damage to that which had previously affected the forward bearing in the starboard stern tube. The port forward stern tube bearing was replaced with a new bearing and new forward and aft seals were fitted. On 4 and 5 November 2002 the chief engineer filled the port stern shaft tube with lubricating oil and pumped that oil through the system for one to two hours to ensure that the system was properly vented of air and ready for use.

TRIALS ON 5 NOVEMBER 2002 12 The undocking of the vessel from Goat Island commenced at 0745 hours on 5 November 2002. After machinery trials, the vessel left Goat Island at 0845 hours and carried out manoeuvring trials and sea trials. The description "sea" trials is something of a misnomer because they were in fact conducted within Sydney Harbour. The vessel's path took it past Fort Denison to Bradley's Head, Junction Buoy and back. During the manoeuvring trials the chief engineer inspected the water at the stern of the vessel when both moving and stationary and there was no indication of any oil in the water. During the sea trials the speed of the main engines was gradually increased to full speed over a 10 minute period. The chief engineer agreed that the real test of the stern tube system was when the engines were at full ahead.

13 The chief engineer monitored the temperatures of the stern tubes. After they had been under way for approximately 30 minutes the temperature of the port shaft increased above its normal operating temperature of 40 degrees centigrade. Over a period of 5 to 10 minutes the chief engineer noticed that the temperature increased to approximately 50 degrees centigrade. He also noticed a drop in the level of the port header tank sight glass by about 25 to 50 millimetres, which equates to about 5 to 10 litres. However, he was unable to accurately read the level in the sight glass due to the pitch and movement of the boat while under way.

14 According to the chief engineer, once the temperature had reached approximately 50 degrees, he informed the master of his observations and said words to the effect: The port shaft temperature has increased. It's approximately 50 degrees which is above its normal operating temperature of 40. We've also had a slight drop in the port header tank. There are three possibilities: it may have been lost internally with a leak, or it may be because of air filling in the system, or it may be an external leak to sea. I need you to decrease the engine speed to reduce the load so I can carry out further investigations.

15 Those three possibilities were accepted in the prosecutor's final submissions.

16 The chief engineer's evidence, which I accept, was that while he recognised that there was a possibility of an external loss of oil, he did not think that was likely because the port shaft had just been fitted with new seals and bearings only days before. He considered that there had only been a slight increase over the normal operating temperature of the shaft and only for a very short duration.

17 The prosecutor's case of a continuing leak from the time of the sea trials initially received support from the evidence of two expert witnesses called by the prosecutor, Mr Peter Burge and Professor Hans Coster. Their evidence was to the effect that oil escaped because the port stern tube seal garter ring became dislodged from its usual position and lodged between the face of the seal and the face of the seat, forcing the faces apart, thus allowing oil to continuously leak into the water. They did not see the garter ring or the seal in that condition but relied on a report of a Mr Trevor Cosh, who was not called to give evidence. However, it was established through the cross-examination of Mr Burge and analysis of Mr Cosh's report, that they had misinterpreted Mr Cosh's report. Mr Cosh's report in fact indicated that the ring came to be lodged between the face of the propeller and the seal. Ultimately, in further cross-examination, Mr Burge conceded that he did not know whether or not the garter ring became lodged between the face of the seal and the face of the seat. In final submissions, the prosecutor appeared to accept that the correct conclusion was that the seal came to be lodged between the face of the propeller and the seal and relied on other evidence to support a conclusion that there was a continuous leak.

18 The prosecutor submitted that three matters lead to the inference that there was a discharge of oil before the vessel arrived at Garden Island: the bearing was overheated, there was a drop in the header tank and Mr Mahon's said statement of the three possibilities. I do not accept that they are sufficient to prove the matter beyond reasonable doubt.

19 According to Mr Jack Hunter, a maritime consultant called as an expert witness in the chief engineer's case, the likely explanation for the drop in the level of the port header tank sight glass was that an air bubble escaped to the header tank. The prosecutor submitted that this hypothesis was untenable in view of the evidence of the chief engineer that he had earlier purged the system of air. However, the evidence of Mr Peter Burge, an expert witness called in the prosecutor's case, refers to and does not dismiss the possibility of an air lock. The prosecutor also pointed to a concession made by Mr Hunter in cross-examination in relation to the displacement of the ring to a point between the seal and the propeller hub that it was "possible" that having the garter ring lodged there would cause the seal to continue to leak. That does not rise to the level of proof beyond reasonable doubt of a continuing discharge.

20 Both prior to and during the sea trials the chief engineer did not observe any oil in the water off the stern of the vessel. During the sea trials no member of the crew reported observing any oil off the stern of the vessel. As the ship approached Fleet Base East at Garden Island following the sea trials, the speed of the vessel was reduced in order to manoeuvre alongside the berth. To the chief engineer's knowledge, at no time as they were coming alongside Fleet Base East at Garden Island was any oil observed in the water off the stern of the vessel or otherwise and no other crew member reported any oil in the water to him.

21 The chief engineer acknowledged in cross-examination that a number of factors would adversely affect the likelihood of effectively observing whether oil had leaked from the vessel while it was in transit: (a) oil would take some time to rise to the surface; (b) the action of the propellers would break up any leaked oil; (c) turbulence of the wake would have made it difficult to observe any leaked oil when the vessel was under way; and (d) the speed of the vessel would make it difficult to detect any oil rising to the surface. Consequently, the prosecutor submitted, once the vessel had been initially tested at full speed, the chief engineer should have posted a lookout at the stern of the vessel and stopped the vessel regularly to check the water surface above the outboard seals for presence of oil on the water. The prosecutor submitted that the failure to take those steps meant that visual observation could not be effectively made.

22 In those circumstances and given that the chief engineer had checked for an internal leak and had taken steps, prior to departure from Goat Island, to ensure that there was no air in the system, the prosecutor submitted that he should have realised that the only realistic explanation for the loss of oil from the header tank was an oil leak to the sea. Therefore, the prosecutor submitted, it was incumbent upon him to take immediate steps to determine whether or not this was the case by advising the master to stop the vessel, check whether oil was rising from the stern and exclude entirely any possibility of the drop in the header tank being an external leak into the sea, before allowing the vessel to proceed any further. The prosecutor referred to the evidence of Mr Burge that, in his opinion, in light of the previous failures, the previous oil spillage and the distinct possibility of continuing stern tube problems, the vessel ought to have been stopped regularly during the trials to examine the adjacent sea surface for tell-tale oil droplets. I accept that visual observation during the sea trials was unlikely to be effective unless the vessel was stopped to check for oil discharge.

23 Nevertheless, in my view, the prosecutor has not proved beyond reasonable doubt that there was any discharge of oil prior to the vessel docking at Garden Island. There is no direct evidence of any oil discharge prior to arrival at Garden Island, nor, as I find below, at any later time except following the use of the vessel's pump by the chief engineer at Garden Island and at HMAS Waterhen. The chief engineer made observations at various times at and after the vessel was at Garden Island (as discussed below) and did not see any oil except after using the pump. Those observations included when the vessel was stationary at Garden Island and when standing at the approaches to the slipway at Goat Island. A discharge of oil should have been observable at those times if the prosecution theory is correct of a continuous leak not readily observable when the vessel was in transit.

24 On the premise that there had been a discharge of oil during the sea trials, the prosecutor submitted that it was caused by the chief engineer's omission to post a lookout at the stern and advise the master to stop the vessel regularly before the drop in the header tank sight glass, and omission to advise the master to stop the vessel immediately and check for leaking oil after the drop in the header tank sight glass level was noticed. As I have found that it has not been proved beyond reasonable doubt that there was a discharge, it is unnecessary for me to rule on this submission or to decide whether such conduct would be an "act" of the chief engineer within the meaning of section 8A(1) of the Marine Pollution Act 1987.

AT GARDEN ISLAND 25 The vessel docked at Fleet Base East, Garden Island at 1000 hours. The chief engineer's subsequent undated report of the incident recorded that thereafter: "Informed of oil appearing on Port Side aft". The report noted that both main engines were shut down and "investigate oil leak. Appears to be from Port Aft seal. Loss of oil from Port Stern Tube Header tank…" The vessel's log book for 1020 hours recorded "Problems identified with Port Shaft".

26 The chief engineer testified that when the vessel docked at Garden Island he was on the stern of the vessel and there was no oil coming to the surface. That piece of evidence was given in cross-examination and was criticised by the prosecutor because it was not set out in his affidavit. However, I accept it.

27 The chief engineer investigated the overheating problem and the reduction in the level of lubricating oil in the port header tank. He engaged the port shaft at zero pitch so that the system was not under load and proceeded to rotate the shaft. At the same time, he utilised the hand priming pump to circulate lubricating oil through the system in order to dissipate the heat in the system. While doing this, a crew member, who he thinks may have been the first engineer Mr Peek, came into the engine room and told him that there were spots of oil rising to the surface off the stern of the vessel. This is consistent with the note in his subsequent undated report, "Informed of oil appearing on Port side aft". He immediately ceased operating the pump and Mr Peek and he walked to the stern and he observed approximately 10 to 20 small droplets of oil rise to the surface in the water over a period of a few minutes in the area adjacent to the port quarter of the vessel. The droplets appeared to be coming from the area astern of the port propeller. In cross-examination the chief engineer explained that he then observed that no more droplets came to the surface while the shaft was still rotating. Thereafter he went down to the engine room and disengaged the gearbox to stop the shaft rotating. He then immediately returned to the area of the stern of the vessel and observed that there were no further droplets of oil rising to the surface of the water, the small droplets previously observed had already begun to dissipate and the very small amount of oil that was in the water dissipated very quickly. I accept his evidence.

28 On the evidence, I find that there was a discharge of 10 to 20 droplets of oil from the vessel while it was at Garden Island and that it was caused by the act of the chief engineer using the pump.

29 After speaking to the master, the chief engineer called the owner's engineering supervisor, Mr Mike Milton, and discussed the situation. Mr Milton advised that the vessel should be re-slipped to carry out further investigations. The chief engineer called the management of the Goat Island slipway and informed them of the situation and the fact that the vessel would be returning to the dock. At approximately 1040 hours both main engines were started in order to proceed to Goat Island but only the starboard shaft was engaged.

30 Mr Jack Hunter, the expert maritime consultant called in the chief engineer's case, expressed the opinions that it was reasonable in the circumstances: (a) for the chief engineer to operate the hand pump in the manner described; (b) not to recommend to the master to deploy an oil containment boom around the vessel at that time; and (c) not to drain the port header tank. I accept the first opinion. The second and third opinions were expressed by reference to an unduly restricted part of Mr Mahon's affidavit evidence and I therefore do not attach significance to those opinions.

31 I accept the prosecutor's submission, which was supported by evidence, that the most prudent course of action at Garden Island would have been to boom the vessel, isolate the header tank from the stern port system, drain and secure the stern tube and investigate the problem, before moving the vessel to Goat Island.

BETWEEN GARDEN ISLAND AND HMAS WATERHEN 32 At approximately 1053 hours the vessel departed from Garden Island for the Goat Island slipway. During this voyage the chief engineer alternately monitored the level of oil in the port header tank sight glass and the water off the stern of the vessel. He did not observe any further reduction in the level of oil in the port header tank or any oil in the water off the stern of the vessel. During this voyage other members of the crew were on the deck getting the mooring lines ready to enter the dock. No member of the crew informed him that there was oil observed off the stern of the vessel.

33 On arrival at the Goat Island slipway, the slip was not immediately available for the vessel to enter. From about 1108 to 1123 hours the vessel stood at the approaches to the Goat Island slip waiting for the slip to become available. During that time, the chief engineer continued to observe the level of oil in the port header tank sight glass and off the stern of the vessel. He did not observe any reduction in the level of oil in the sight glass or any oil in the water off the stern of the vessel. Those observations are particularly significant because if the vessel was leaking oil between Garden Island and HMAS Waterhen, it should have been readily observable while the vessel was stationary off Goat Island.

34 Due to congestion at Goat Island and a falling tide, the vessel could not be slipped at that time. Instead, at approximately 1123 hours, it proceeded to the naval establishment HMAS Waterhen in Balls Head Bay, to await the next high tide that evening.

35 During the voyage from Goat Island to HMAS Waterhen the chief engineer again alternately monitored the level of oil in the port header tank sight glass and the water off the stern of the vessel. At no time during this voyage did he observe any further reduction in the level of oil in the port header tank or any oil in the water off the stern of the vessel. During that voyage there were other members of the crew on the deck getting the mooring lines ready to berth at HMAS Waterhen. No member of the crew informed him that there was oil observed off the stern of the vessel.

AT HMAS WATERHEN 36 The vessel berthed at HMAS Waterhen at 1140 hours. A note in the chief engineer's subsequent written report recorded that: "Oil still discharging from Port Shaft. Hand pump lines reversed and oil pumped out of oil tube". The prosecutor emphasised the word "still", submitting that it suggested a continuous leak between Garden Island and HMAS Waterhen. The entry evidences knowledge of an oil discharge on at least one earlier occasion. Two earlier occasions are mentioned in his report, both of which I have referred to previously. The first was the incident on 18 October 2002. The second was at Garden Island. The chief engineer explained that his notation did not mean that oil was discharging between Garden Island and HMAS Waterhen, rather it referred to his understanding that the prior problems associated with the port shafting arrangement appeared to be continuing. I accept his explanation.

37 At HMAS Waterhen the master ordered an oil containment boom to be placed around the vessel as a precaution against the discharge of any oil. The boom was placed around the vessel at approximately 1150 hours. The chief engineer noticed at that time that there was no oil in the water within the containment boom or otherwise.

38 The chief engineer undertook further investigations into the cause of the problems. During investigations, with the port main engine shut down and the port shaft not rotating, he circulated oil in the port shaft lubricating system by using the hand priming pump. That is what he had earlier done at Garden Island. While pumping oil through the system using the pump, he was informed of oil in the water coming from the stern of the vessel. As soon as he was informed of the oil leak he ceased circulating the oil through the system and informed the master of the spill and that the port shaft rear seal was leaking oil. That evidence is not inconsistent with the vessel's log entry for 1210 hours: "Boom position checked. Secure. Very slight oil film inside boom".

39 The master ordered the crew to commence clean up operations and deploy oil absorbent pads. The lubricating oil was completely drained from the port stern shaft lubricating system in order to avoid any further discharge. Based upon the chief engineer's observations of the level in the port stern tube header tank sight glass, he believed that approximately 15 litres of oil had drained from the port header tank from the time that the vessel undocked from Goat Island to the time that the port shaft system was drained. He believed that some of the oil was discharged into the water while some of it filled the residual air pockets in the port stern shaft system.

40 Sydney Ports Corporation officers gave evidence of their attendance on the afternoon of 5 November 2002 at HMAS Waterhen at various times while the oil clean-up was still under way. Messrs Frederick Tagoe and Peter Smith estimated that the volume of oil in the water was approximately 15 litres. Mr Brett Heath's estimate was 10 to 15 litres. He observed a light sheen and some streaks of oil around the stern inside the boomed area after the clean-up operation had begun. He testified that had he seen oil outside the boomed area he would have included it in his affidavit. Mr Adrian Hawes estimated that there was between 5 and 10 litres of oil in the water along the port stern side of the vessel. He also observed a light sheen on the water surface outside the boomed area: I accept that evidence and conclude that at some time during the afternoon a small quantity of the oil escaped outside the boom.

41 If any finding is to be made as to the quantity of oil discharged, it must be found beyond reasonable doubt. Where there is no precise or accurate measurement of the quantity, the defendant is entitled to have it assessed on the basis of the lower range of the estimates given: Filipowski v Island Maritime Ltd; Majgaonkar [2005] NSWLEC 73 at [28]; Filipowski v Cadem Shipping Pty Ltd & Anor [2005] NSWLEC 552 at [31]. When determining the appropriate sentence, the Court may not take into account the potential for there to have been a larger discharge than the one that actually occurred, because to do so would be to punish the defendant for an act with which he is not charged: Thorneloe v Filipowski (2001) 52 NSWLR 60 at [146] per Spigelman CJ.

42 I find that between about 5 and 15 litres of oil discharged into the water at HMAS Waterhen after it was boomed, of which a small proportion escaped outside the boomed area. I find that the cause of the discharge was the use of the hand pump by the chief engineer.

43 I have earlier noted that the garter ring on the port stern tube seal was dislodged and came to be lodged between the face of the seal and the propeller. Mr Hunter, the expert witness called in the defence case, concluded that: (a) with the bronze garter ring lodged at the aft end of the seal, there was no serious impediment to the seal working effectively; and (b) oil was discharged on two distinct occasions on 5 November 2002, being the two occasions in which Mr Mahon operated the hand pump. Mr Hunter's theory was that vigorous use of the hand pump caused the system to be over pressurised, which then caused the neoprene part of the stern tube seal to balloon outward and release the pressurised oil. In his affidavit evidence he supposed a cone-shaped deformation of the ring. His view was criticised by the prosecutor principally because he had never seen it happen in practice nor heard of it happening. That criticism has weight. A further criticism was that Mr Hunter indicated in his affidavit evidence that the ring must have been deformed into a cone shape, yet there was no evidence of such a deformity. He did, however, say in cross-examination, and I accept, that it did not necessarily have to be deformed into a cone shape.

44 Looking at the evidence as a whole, I am not satisfied that the prosecutor has proved beyond reasonable doubt that there was any discharge of oil other than as a result of the use of the pump. That is consistent with the observations of the chief engineer, which I accept.

THE ACT FOR WHICH THE CHIEF ENGINEER MAY BE PUNISHED 45 The chief engineer submitted that the proscription in s 8A(1) of the Marine Pollution Act 1987 of an "act" of a crew member causing discharge, does not include an omission. The word "act" is not defined in the Marine Pollution Act 1987. The prosecutor submitted that "act" in s 8A(1) should be construed as including an omission and referred to R v Phillips (1971) 45 ALJR 467. In my opinion, the term "act" in s 8A(1) does not include an omission for two reasons that were advanced by the chief engineer. First, the ordinary meaning of the word "act" is anything done or performed and does not include an omission: see Macquarie Dictionary (4th ed). Secondly, s 8A(1) may be contrasted with a number of cognate provisions of other statutes which expressly impose liability for acts and omissions: Environmental Offences and Penalties Act 1989 (repealed) s 10, Environmentally Hazardous Chemicals Act 1985 s 53, Protection of the Environment Operations Act 1997 s 169, Marine Safety Act 1998 s 130, Pesticides Act 1999 s 111 and the Water Act 1912 s 21A. In Krakouer v The Queen (1998) 194 CLR 202 at 223, McHugh J quoted Jordan CJ in Ex parte Fitzgerald; Re Gordon (1945) 45 SR (NSW) 182 at 186: "If conduct of a particular kind stands outside the language of a penal section, the fact that a court takes the view that it is through inadvertence of the Legislature that it has not been included does not authorise it to assume to remedy the omission by giving the penal provision a wider scope than its language admits". McHugh J added: Still less should a court ignore the clear words of a provision so as to give it a meaning that would or might make it easier to convict an accused if the intention of the legislature is at best a matter of contestable opinion…

46 However, particular conduct can often be seen as both an act and an omission. In R v Phillips (1971) 45 ALJR 467, s 153(1) of the Criminal Code (Tas) provided that homicide is the killing of a human being by another. Section 156(2) provided: "Homicide is culpable when it is caused - (a) by an act which is intended to cause death or bodily harm, or which is commonly known to be likely to cause death or bodily harm, and which is not justified under the provisions of the Code; (b) by an omission amounting to culpable negligence to perform a duty tending to the preservation of human life, although there may be no intention to cause death or bodily harm; or (c) by any unlawful act". Windeyer J said at 477: In describing conduct the Code sometimes refers to an act , sometimes an omission and sometimes uses the phrase an act or omission . The use of the word act in s. 156(2)(a) contrasted with omission in s 156(2)(b) in descriptions of culpable homicide led to a submission that the two terms are mutually exclusive, and that here the death could not be said to have been caused by an act if it resulted from an omission to remove the victim from a place of peril… …Conduct can however often, perhaps always, be seen and described as involving both an act and an omission. A man who deserts his post omits to perform his duty there; and his going away is a positive act. If a man keeps his mouth shut when he ought to speak, his conduct is an act and an omission. If a man intentionally moves when he ought to stand still, or stands still when he ought to move, his conduct can be regarded either as an act or as an omission or as both. In the present case the conduct of the accused, according to his statement, in taking the girl from where she fell, putting her at the water's edge when she was alive but unconscious, and abandoning her there was, I have no doubt, an act. His leaving her to her fate, keeping silence and not seeking aid may be called omissions. But they are not I think omissions that could come within s 156(2)(b).

47 In the present case, the issue whether "act" in s 8A(1) includes an omission is sterile. That is because I have found that there were two acts of the chief engineer which caused two discharges: the act of pumping at Garden Island and the act of pumping at HMAS Waterhen.

48 The chief engineer also submitted that the charge encapsulates one act causing one discharge, that for it to do otherwise would be impermissibly duplicitous, and that consequently the Court may sentence the chief engineer for only one act and the discharge it caused: S v The Queen (1989) 168 CLR 266 at 284; Walsh v Tattersall (1996) 188 CLR 77 at 84. To these authorities I would add a reference to Pace Farm Egg Products Pty Ltd v Newcastle City Council (2006) 151 LGERA 260 (NSWCA). The chief engineer submitted that it is open to the Court to punish him for the act of pumping at Garden Island or for the act of pumping at HMAS Waterhen, but not for both acts.

49 In Walsh at 84 - 85 Dawson and Toohey JJ quoted Lord Diplock in Director of Public Prosecutions v Merriman [1973] AC 584 at 607, as follows: The rule against duplicity …has always been applied in a practical, rather than in a strictly analytical, way for the purpose of determining what constituted one offence. Where a number of acts of a similar nature committed by one or more defendants were connected with one another, in the time and place of their commission or by their common purpose, in such a way that they could fairly be regarded as forming part of the same transaction or criminal enterprise, it was the practice, as early as the eighteenth century, to charge them in a single count of an indictment.

50 In Walsh Kirby J said at 107: The apparent artificiality of insisting on applying the rule against duplicity in its full rigour has been highlighted by actual and theoretical instances that have arisen, or been contemplated, where criminal acts occurred in very close proximity to each other. If, for example, criminal acts occurred within a few minutes of time and in close physical proximity, could they be regarded as components of the one activity, so as to be susceptible to treatment as a single count ( Jemmison v Priddle [1972] 1 QB 489)? If the events were seen as part of the one transaction or criminal enterprise this approach has been held to be permissible in England ( Director of Public Prosecutions v Merriman [1973] AC 584 at 607). If a precise understanding of the charge laid, although evidenced by multiple acts, is that it represents a single crime, then a single count is permissible ( Montgomery v Stewart (1967) 116 CLR 220). Many of the apparently conflicting judicial opinions, so criticised by the commentators, represent nothing more than attempts by judges to characterise multiple acts upon which the prosecution relied and to decide whether or not they could be fairly viewed as the one transaction or criminal enterprise so as to escape an attack on the ground of alleged duplicity ( Jemmison v Priddle [1972] 1 QB 489 at 494-495). The usual explanation given for adopting this approach is that, only by doing so, would the judges be able to avoid reducing the law to technical absurdity…

51 A count is not duplicitous if it relates to one activity even though that activity may involve more than one act. For example, a count alleging a number of thefts from different departments of the one store is not duplicitous: R v Wilson (1979) 69 Cr App Rep 83. The test is whether all offences were part of the one activity, transaction or enterprise: R v Moussad (1999) 152 FLR 373; R v Hamzy (1994) 74 A Crim R 341.

52 In my opinion, it would not be impermissibly duplicitous for the said two acts of pumping to be encapsulated in the one charge. They are acts of a similar nature, sufficiently connected with one another in the time and place of their commission and in their purpose, and thus they could fairly be regarded as forming part of the same activity.

53 As to what the charge encapsulates, on a literal reading it refers to one act causing one discharge of oil. However, well before the hearing the defendant requested and was provided with particulars and the parties filed and served affidavits of their evidence. It is clear from the particulars and affidavits that the prosecutor was alleging (and it is clear from the defendant's affidavits that he was contesting) that the chief engineer's conduct over a period of several hours caused oil to discharge. I consider that the charge would have been understood, and should be construed, in that light. Therefore, the chief engineer can be punished for both the acts to which I have referred.

54 However, if this is erroneous and the chief engineer may only be punished for one act causing one discharge, I would impose punishment for the second act of pumping. I regard the second act as the more serious because the chief engineer knew from his experience of pumping at Garden Island that it caused an oil discharge, yet he repeated that act at HMAS Waterhen. As it happens, I consider that in the peculiar circumstances of the case, the punishment would be the same whether it was imposed for both acts or only for the second act.

SENTENCING 55 The objective seriousness of the offence is reflected in the maximum penalty and in the increase in the maximum penalty when s 8A of the Marine Pollution Act 1987 was introduced in November 2002. The maximum penalty for acts causing a discharge contrary to s 8A is $500,000 for individuals and $10 million for corporations. Prior to the introduction of s 8A by the Marine Legislation Amendment (Marine Pollution) Act 2002, the maximum penalty was $220,000 for individuals and $1.1 million for corporations. It was said in the Second Reading Speech for the Bill that: The purpose of the Bill is to further protect New South Wales waters from the effects of oil pollution from vessels by providing stronger incentives for owners, masters and crew of vessels to comply with the Marine Pollution Act …

56 The offence for which s 8A provides is a strict liability "result" offence. The result of the discharge of oil or oily mixture is the focal point of the legislature's concern with the conduct in question. A sentence for a result offence "may not take into account the potential for the result to occur, the actual occurrence of which is an essential ingredient of the offence. To take potential for harm into account would be to punish the offender for conduct which would constitute a different offence for sentencing purposes, that is, a larger discharge'": Thorneloe v Filipowski (2001) 52 NSWLR 60 at [146]. However, such potential is a risk to society and is a "proper" matter to be considered under s 10(3)(d) of the Crimes (Sentencing Procedure) Act 1999 when exercising the discretion whether to dismiss proceedings without proceeding to conviction: Thorneloe at [156].

57 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 58 The damage caused by the offence is to be assessed by reference to the quantity of oil discharged. Ten to twenty droplets were discharged at Garden Island. 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 of oil 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 59 There is no suggestion that the offence was part of a planned or organised criminal activity.

Record and good character 60 The chief engineer has no prior convictions. He is a person of good character. He has a long and respectable employment history, including 21 years service in the Royal Australian Navy. He presently serves in the Australian Customs Service.

Unlikely to re-offend 61 In my opinion, the chief engineer is unlikely to re-offend. He has acknowledged that his analysis of the situation at HMAS Waterhen was below the standard required. He testified, and I accept, that he has learned from his errors on 5 November 2002 and that if he ever encountered problems with the vessel's oil system again, he will be far more cautious and assume that there is a potential discharge into the water. Since the incident he has impressed these ideas on the crews with which he has worked.

Remorse and assistance to law enforcement or regulatory authorities 62 The chief engineer has shown remorse. The crew, including the chief engineer, 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. Mr Hawes of the Sydney Ports Corporation commented to the effect that the crew competently cleaned up the spill, he was satisfied with the crew's efforts, the crew followed all the corporation's requests and cleaned up the spill effectively.

Plea of guilty 63 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. In the present case, the plea of guilty appears to have been entered at the earliest opportunity and was of substantial utilitarian value. I propose to allow a 25 percent discount on penalty for the utilitarian value of the early plea: R v Thomson; R v Houlton (2000) 49 NSWLR 383.

Precautionary steps 64 The chief engineer agreed that his analysis of the situation and actions at HMAS Waterhen were below the standard required and that on reflection he would have done things differently at Garden Island. As I have said, it is difficult to understand why he used the pump again at HMAS Waterhen when his experience at Garden Island indicated that use of the pump caused oil to discharge. I have earlier expressed my view as to the precautionary measures that should have been taken at Garden Island. I consider that similar steps should have been taken at HMAS Waterhen, additional to the booming of the vessel.

Section 10 CRIMES (SENTENCING PROCEDURE) ACT 1999 65 The chief engineer applied to be dealt with by an order under s 10 of the Crimes (Sentencing Procedure) Act 1999 without proceeding to a conviction. Section 10 relevantly 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. … 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. … 66 The following principles relating to s 10 were identified by the Court of Criminal Appeal in the marine pollution case of Thorneloe v Filipowski (2001) 52 NSWLR 60 per Spigelman CJ (with whom Hulme and Howie JJ agreed): [156] The risk to which society was subject is, in my opinion, a relevant and, accordingly, a proper consideration to be taken into account in deciding whether to dismiss proceedings without proceeding to a conviction. This is so even in the context of a strict liability result offence like s 27. …

[158] In my opinion, when Talbot J referred to, and took into account, the potentiality for harm, he was having regard to a consideration which it was open to him to regard as proper to consider … …

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

[178] 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.

67 It was conceded that this is not a case where it can be said that the chief engineer could not have done anything to avoid the discharge. However, it was submitted that an order under s 10 was appropriate because (a) it was his first offence; (b) the amount of oil discharged was at the bottom end of the scale and was almost completely contained; (c) he conceded that his conduct was below the standard; (d) he had a rational basis for believing that what he was doing was acceptable although he was incorrect; and (e) that a conviction against his name would have potential to interfere with his ongoing employment with the Australian Customs Service.

68 The first three points are sound. As to the fourth point, I am unable to accept that there was a rational basis for the chief engineer to believe that the act of pumping at HMAS Waterhen was acceptable given that the earlier act of pumping at Garden Island caused oil to discharge. He could have averted the discharge at HMAS Waterhen by taking precautionary steps at Garden Island or HMAS Waterhen or by not using the pump at HMAS Waterhen

69 As to the fifth point, the chief engineer's evidence was that he holds a Marine Engineer Class 3 Certificate in order to permit him to perform his duties as a marine engineer, and that he was aware that the Australian Maritime Safety Authority may cancel, suspend or impose restrictions on his certificate in response to any criminal conviction. On the evidence before me, I consider that it would be most inappropriate if not irrational, and therefore most unlikely, that the Authority would impose any such cancellation, suspension or restriction.

70 Dr Marcus Lincoln-Smith, an aquatic ecologist gave evidence for the prosecution as to the likely effects on the marine environment of an assumed oil leakage. His evidence is only relevant to the s 10 application. He assumed likely oil leakage from the time of the vessel's initial passage to Garden Island to after it was secured at HMAS Waterhen. He concluded, on that assumption, that there would be a high likelihood of the oil coating intertidal habitats and associated flora and fauna. However, I have found that, on the evidence, the only discharges were at Garden Island and HMAS Waterhen after booming. The evidence of Dr Lincoln-Smith therefore does not assume much significance in the case.

71 In my view in all the circumstances the chief engineer should not be afforded the benefit of s 10.

Comparable sentences 72 Although each case turns on its own facts, I have had regard to sentences in other marine pollution cases, in most of which the offences occurred before the legislature increased the penalties: Morrison v Che Mat and Others (1997) 95 LGERA 212; Filipowski v De Ocampo [1998] NSWLEC 119; Filipowski v Fratelli D'Amato S.r.l and Others (2000) 108 LGERA 88; Hoogendoorn v MISR Shipping Company and Hassan [2001] NSWLEC 171; Thorneloe v Filipowski [2001] NSWCCA 213, (2001) 52 NSWLR 60; Webb v Chung & Ors [2002] NSWLEC 135; Filipowski v Arta Adhisatya Pte Ltd and Sahea [2002] NSWLEC 169; Filipowski v Wallenius Lines Singapore Pte Ltd & Anor [2002] NSWLEC 148; Morrison v Peacock and Roslyndale Shipping Co Pty Limited [2003] NSWLEC 68; Filipowski v Dayton Corporation (2004) 138 LGERA 150; Filipowski v Schiffsbeteiligungsges m.b.H & Co KG (2004) 134 LGERA 48; Filipowski v Mediterranean Shipping Co SA and Ors [2005] NSWLEC 159; Filipowski v Frey [2005] NSWLEC 661; Filipowski v Cadem Shipping Pty Limited & Anor [2005] NSWLEC 552; Barbara Filipowski v Vopak Terminals Sydney Pty Ltd [2006] NSWLEC 104; Filipowski v Island Maritime Ltd; Majgaonkar [2006] NSWLEC 750.

73 Where parliament has increased the maximum penalty for an offence, higher penalties will ordinarily result for that offence: R v Slattery (1996) 90 A Crim R 519 at 524. However, it does not follow that, for every offence committed after the penalty has been increased, the increase in penalty will be by the same multiple applied to increase the maximum penalty: Cabonne Shire Council v Environment Protection Authority (2001) 115 LGERA 304 at 312; Environment Protection Authority v Middle Harbour Constructions Pty Ltd (2002) 119 LGERA 440 at 444; Barbara Filipowski v Vopak Terminals Sydney Pty Ltd [2006] NSWLEC 104 at [124].

74 The chief engineer submitted that an appropriate fine would be of the order of $35,000 and drew attention to the fine in that sum in the marine pollution case of Webb v Chung & Ors [2002] NSWLEC 135.

PARITY 75 There should be due proportion between the sentence passed on the chief engineer and the sentences passed on the owner and master, which are the subject of my separate judgment. That should be after making due allowance for the fact that the evidence against each was different as were the charges: Postiglione v The Queen (1997) 189 CLR 295 at 301; R v Li [2005] NSWCCA 154 at [40]; R v Howard (1992) 29 NSWLR 242. I consider that the culpability of the chief engineer is somewhat greater than that of the owner and that the culpability of the owner is somewhat greater than that of the master. The chief engineer was the officer with direct responsibility and who was directly involved. The owner through Mr Milton was directly involved in the decision to move the vessel from Garden Island without taking precautions but was not directly involved in the chief engineer's conduct at HMAS Waterhen. However, the discount for an early plea is somewhat greater in the case of the chief engineer than in the case of the owner and master, as indicated in my other judgment. Overall, the penalty for the chief engineer and the owner should be the same and the penalty for the master should be somewhat lower.

CONCLUSION 76 Taking into account all relevant circumstances I propose to impose a fine of $35,000 on the chief engineer. He has asked to be heard on costs.

77 I make the following orders: 1. The defendant is found guilty and convicted of the charge in the summons. 2. A penalty of a fine in the sum of $35,000 is imposed. 3. Costs are reserved. 4. The exhibits may be returned. 5. The parties are to approach the registrar within two working days to obtain a date for the hearing of any argument as to costs. Written submissions as to costs are to be served and delivered to my associate by 4 pm two working days before the hearing.

06/09/2007 - Omitted hearing dates 27-28 February 2007 - Paragraph(s) cover sheet

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.

(2001) 115 LGERA 304

(2002) 119 LGERA 440

(2004) 138 LGERA 150

(2006) 151 LGERA 260

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