Newcastle Port Corporation trading as Port Authority of New South Wales v Dudgeon; Newcastle Port Corporation trading as Port Authority of New South Wales v Svitzer Australia Pty Limited

No actual environmental harm and no significant damage to property

1. As the spill had not spread beyond the confined portions of Newcastle Harbour in the vicinity of the tug's berth, no significant damage to property was observed or reported nor was any environmental harm or damage said to have been suffered as a consequence of the spill.
2. The prompt response by Svitzer and the Port Corporation to the spill, I am satisfied, contributed significantly to the avoidance of actual harm to the environment.

Potential harm to the environment

1. Preston CJ set out, under the heading Objective harmfulness of offence, in Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; 148 LGERA 299, a number of principles. The first of them, relevant in these proceedings, is that "Harmfulness needs to not only be considered in terms of actual harm, the potential or risk of harm should also be taken into account" (at [145]).
2. There are a number of matters requiring consideration to assess what might have been the potentiality for harm to the environment when compared to the actual results of the spill.
3. In the Svitzer proceedings, the Prosecutor's written submissions concerning this were: Other than simply considering the volume spill, the area affected by oil and kind of oil discharged; the extent of clean-up operation is an indication of the seriousness of the potential harm to the environment (see paragraph 23 of the agreed facts).
4. The paragraph referred to sets out the duration and cost of the clean-up operation.
5. Whilst the potentiality for harm will obviously be greater in proportion to the quantity spilled and the nature of the material spilled, Mr Nell submitted that the potentiality, in this instance, was minor, "having regard to both the nature and qualities of the oil discharged, as well as the movement of the oil within and out of Newcastle Harbour with the wind and tide".
6. The oil discharged was diesel fuel oil, a substance that was agreed to be one which would readily dissipate and evaporate. Whilst I accept that the nature of the oil discharged is a factor to be considered in my assessment of the potentiality for harm to the environment as a consequence of the spill, the effects of the wind and tide, in this instance, were ones that were serendipitously beneficial but were not ones to which I ought have regard as diminishing the potentiality for harm.
7. Although there are the quantitative and qualitative differences between the substances involved in the spill dealt with by Sheahan J in Newcastle Port Corporation v MS Magdalene Schiffahrtsgesellschaft MBH; Newcastle Port Corporation v Vazhnenko [2013] NSWLEC 210 and the substance spilled in these matters, the Magdalene facts demonstrate that, in that instance, environmental harm actually occurred from a spill in the Port of Newcastle.
8. The absence of actual harm in this instance is not proof that there was no potentiality for harm. Although trite to be repeated, the absence of evidence is not evidence of absence.
9. In this case, the quantity of diesel fuel oil spilled coupled with the fact that an extensive clean-up over three days was necessary to deal with the spill is sufficient, in my opinion, to draw the conclusion that, although there was no actual harm to the environment, nonetheless there was a real and foreseeable potential that there might be harm to the environment occasioned by such a spill.

Risk of harm to the environment

1. The risk of harm to the environment has to be viewed in light of Svitzer's control over the causes of the spill. At the time of the discharge of diesel fuel oil on 6 January 2014, Svitzer had in place procedures for conducting internal fuel transfers and had a shipboard oil pollution management plan which covered incidents arising from internal fuel transfers.
2. Had the procedures for conducting internal fuel transfers and the shipboard oil pollution management plan been followed by Mr Dudgeon, the spill would not have taken place. In particular, the disabling of the alarms by Mr Dudgeon's actions was inconsistent with Svitzer's transfer procedures which required all alarms to be working during transfers.
3. Svitzer had complete functional control over the vessel and the activities of its crew. The company is, therefore, vicariously responsible for Mr Dudgeon's behaviour. However, these failures by Mr Dudgeon are not evidence that the company's conduct gave rise to any general risk of harm to the environment.
4. Although there was a minor overlap between the commencement of the pumping operation by Mr Dudgeon and the departure from the vessel by its Master, it was agreed (and I accept) that this does not warrant any adverse inference against Svitzer in these proceedings.

The practical measures taken to avoid harm to the environment

1. The spill was not observed by any Svitzer employee until approximately 5.30 pm when an employee of another port operator told a Svitzer employee that there appeared to be a spill into the Harbour. Svitzer's Port Manager that day, Mr Buckland, observed diesel fuel oil on the vessel and in the Harbour. He immediately located the vessel's spill kit; blocked the vessel's scuppers with sausage boom; and after speaking with the vessel's master and with Mr Dudgeon, disconnected the shore power to the transfer pump thus turning it off.
2. Mr Buckland's actions captured some of the diesel fuel oil on the vessel's deck and prevented additional diesel fuel oil entering Newcastle Harbour.
3. At approximately 5.55 pm on 6 January 2014, Mr Buckland telephoned the Port Corporation's Vessel Traffic Information Centre to report the discharge of diesel fuel oil from the vessel into the Harbour.
4. On the evening of 6 January 2014, clean-up operations were commenced by Svitzer and the Port Corporation. The Port Corporation's clean-up operations lasted for the period from 6 January 2014 until 9 January 2014.

No prior offences

1. The first relevant factor is that in s 21A(3)(e) as to whether the company has "any record (or any significant record) of previous convictions".
2. Svitzer has not previously been convicted of any environmental offences.

Likelihood of reoffending

1. The second relevant factor is that in s 21A(3)(g) as to whether the company "is unlikely to re-offend".
2. Since October 2009, there have been three prior discharges of oil or an oily substance into Newcastle Harbour from Svitzer's tugs. The previous discharges were: 1. In October 2009, there was a 1 - 2 litre discharge of hydraulic oil from the vessel "Wilara" from a burst hydraulic line. 2. In February 2012, there was discharge of 5 litres of oily waste from the vessel "Carrington" during an onboard bilge transfer. 3. In July 2013, there was a 12 litre discharge of bilge water from the vessel "Mayfield" into Newcastle Harbour.
3. As can be seen, the volume of each of these discharges was very small. Although Svitzer has had these three previous discharges into Newcastle Harbour from vessels operated by it, Svitzer had not been prosecuted for any of these events. There is nothing to suggest that these incidents are anything other than uncharacteristic aberrations (Veen v The Queen [No 2] (1988) 164 CLR 465 at 477; Camilleri's Stock Feeds at 700). I am satisfied that these incidents do not warrant me finding that Svitzer is likely to reoffend.
4. The Agreed Statement of Facts in the Svitzer proceedings records (at [32]) that Svitzer has commenced upgrading its Safety Management System in the following manner: a) Training of all personnel at the Defendant in the new global Harmonised Management System, replacing and expanding upon the existing Safety Management System which involves the training of all of the Defendant's employees on a global basis. In respect of Newcastle, this involves six training sessions to cover all staff and crew. As of 13 March 2014, four of the six sessions had been completed; b) Preparation for accreditation to ISO-14001 - 2008 Environmental Management Systems with external auditing scheduled to begin late in 2014. c) The Defendant has registered in OVMSA (Offshore vessel Management and Self-Assessment), a ship management best practice
5. Although these propositions relate to the position as at early 2014 (as a consequence of the initial time of settlement of the document), I accept, as Mr Nell informed me from the bar table, that there has been substantial implementation during the intervening period. Mr Cox raised no objection to me taking this statement into account.
6. Svitzer has appointed an Environmental Officer in Newcastle to implement environmental training and awareness for its employees there.
7. I am satisfied these steps demonstrate an increased commitment on behalf the company to ensure that an incident such as that giving rise to this prosecution will not occur again. As earlier discussed, Svitzer's prior minor spills do not provide a foundation for any adverse conclusion. I am therefore satisfied that it is unlikely that the company will reoffend.

Introduction

1. The third relevant factor is that in s 21A(3)(i) as to whether the company has shown remorse for the offence. This engages consideration of two elements contained in the provision that are both required to be satisfied. These, relevantly adapted, are: (i) the company has provided evidence that it has accepted responsibility for its actions, and (ii) the company has acknowledged any loss caused by its actions and has made reparation for such loss

Acceptance of responsibility

1. On 15 January 2014, Svitzer's global CEO wrote to the Prosecutor apologising for the incident and any harm and/or distress caused (Exhibit B - Svitzer Agreed Statement of Facts at [33]).
2. On 6 March 2014 and 13 March 2014 (Exhibit B - Svitzer Agreed Statement of Facts at [34]), Svitzer advised the Prosecutor that: 1. It apologised to the Port Corporation for the incident and 2. Svitzer regretted the incident and would assist the Prosecutor in any way that it could.
3. I am satisfied that the company has accepted responsibility for the spill that gives rise to its prosecution.

Reparation - the clean-up of the spill

1. I am satisfied that the company gave prompt and appropriate assistance (as earlier detailed) in the clean-up of the spill and this effected a practical contribution to reparation for it.

Reparation - the clean-up costs

1. Upon receipt of the details of the amount of clean-up costs from the Port Corporation, Svitzer reimbursed the Port Corporation with the full amount of the clean-up costs in the sum of AUD$65,850.58 (including GST).
2. The prompt reimbursement by Svitzer of the Port Corporation of the full amount of the clean-up costs also demonstrates a practical contribution to reparation for the spill.

Conclusion on contrition and remorse

1. These various actions taken together are an effective demonstration of the company's contrition and remorse.

The company's plea of guilty

1. The Sentencing Procedure Act (s 21A(3)(k)) also requires that a guilty plea be taken into account "as provided by section 22". The terms of s 22 are set out below: 22 Guilty plea to be taken into account (1) In passing sentence for an offence on an offender who has pleaded guilty to the offence, a court must take into account: (a) the fact that the offender has pleaded guilty, and (b) when the offender pleaded guilty or indicated an intention to plead guilty, and (c) the circumstances in which the offender indicated an intention to plead guilty, and may accordingly impose a lesser penalty than it would otherwise have imposed. (1A) A lesser penalty imposed under this section must not be unreasonably disproportionate to the nature and circumstances of the offence.
2. In these proceedings, a guilty plea was entered by Svitzer at the earliest available occasion.
3. It is settled, since the 2000 guideline judgement in R v Thompson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383, that the discretionary discount on the sentence for an early guilty plea would ordinarily be within the range of 10% to 25%.
4. Svitzer's guilty plea has had utility to the system of justice. The plea was entered before the List Judge on the first return date, thus enabling the matter to be set down for a sentencing hearing without requiring further preliminary attendance.
5. When this is coupled with the efficient conduct of the hearing (as earlier noted, the sentencing hearing was completed in half a day without the need for oral evidence), these two factors demonstrate the significant benefit to the system of justice of the pleas in these proceedings. As a consequence, I am satisfied that Svitzer is to be granted the maximum discount of 25%.

Assistance to the prosecutor

1. The final relevant factor is that in s 21A(3)(m) as to whether the company has provided "assistance … to law enforcement authorities (as provided by section 23)". In this context, it is not necessary set out the terms of s 23.
2. I find, on the basis of the Agreed Statement of Facts in Svitzer's prosecution, that Svitzer has at all times provided its full cooperation with and assistance to the Prosecutor with the investigations into the spill giving rise to the prosecution.

Introduction

1. As earlier noted concerning the company, the Sentencing Procedure Act (s 21A(2) and (3)) requires that I consider, as elements of the instinctive synthesis process later discussed, any relevant aggravating and mitigating factors to be taken into account in determining the appropriate sentence for Mr Dudgeon.
2. As can also be seen from the discussion that follows, none of the specific aggravating factors in s 21A(2) arise with respect to Mr Dudgeon.

Objective factors - the facts of the offence

1. The broad factors concerning the offence earlier set out in my analysis concerning the company at [48] to [58] apply, mutatis mutandis, to Mr Dudgeon.

Maximum penalty

1. The position concerning maximum penalties is as set out at [40] to [44] above.

Mr Dudgeon's actions giving rise to his offence

1. As a consequence of Mr Dudgeon having spare time before the end of his shift, he elected to top up the diesel fuel in the daily service tank in order to assist the crew who would be operating the vessel next (and that there was no obligation for him to do so).
2. As an experienced Chief Engineer, he would necessarily have understood that such an activity needed to be undertaken in a fashion not occasioning any fuel spill from the vessel. Despite this, he chose to carry out the operation in breach of the procedures set out below as mandated by his employer for such transfer operations.
3. Svitzer's mandated procedures for conducting an internal fuel transfer set out nine steps to be carried out once a determination had been made that "operational activities necessitate internal fuel transfer". These steps were: 1) Inform master that a fuel transfer is required 2) Ensure all alarms and auto cut out switches are operational 3) Sound and record level in the to and from transfer tanks in the Engineer's Diary 4) Ensure overflow tank(s) (where fitted) have adequate capacity 5) Prepare fuel transfer system and commence internal transfer of fuel 6) Actively monitor tank levels during internal fuel transfer process 7) On completion of transfer, stop pump and check all valves are in correct position 8) Advise Master that fuel transfer is completed 9) Record details in the Engineer's Diary including stop and start times
4. Critically to causing the discharge to occur, Mr Dudgeon: 1. Did not inform the master of the Tug that a fuel transfer was proposed (ignoring Step 1); 2. Did not ensure all alarms and auto cut out switches were operational during the transfer (ignoring Step 2); 3. Did not monitor tank soundings during the transfer (ignoring Step 3); 4. Did not monitor tank levels during the internal fuel transfer process (ignoring Step 6); and 5. Did not stop the pump when the day tank was filled (effectively ignoring Step 7).
5. The cause of the spill arose from Mr Dudgeon's departure from the vessel whilst the transfer pumping was taking place and as a consequence of his failure to carry out the full processes required by the company's mandated procedures for conducting an internal fuel transfer.
6. I am satisfied that, had Mr Dudgeon followed the mandated procedures for internal fuel transfers, it would have been inevitable that the spill would not have occurred.
7. Whilst Mr Dudgeon's conduct is to be taken into account in determining the position of his offending conduct within the descriptive range of seriousness (as discussed later), the Prosecutor has not proved beyond reasonable doubt that Mr Dudgeon was reckless or careless or negligent so as to be an aggravating factor (R v Olbrich [1999] HCA 54; 199 CLR 270 at [27]).

No prior offences

1. The first relevant factor is that in s 21A(3)(e) as to whether Mr Dudgeon has "any record (or any significant record) of previous convictions".
2. Mr Dudgeon has been an engineer for approximately 42 years and a Chief Engineer for approximately 32 years. During his career, he has not been prosecuted or convicted for any offence in relation to the discharge of oil into State waters.

Likelihood of reoffending

1. The second relevant factor is that in s 21A(3)(g) as to whether Mr Dudgeon "is unlikely to re-offend".
2. In this regard, I adopt Mr Nell's submission in Mr Dudgeon's case: Mr Dudgeon is conscious of the consequences of his actions on this occasion on 6 January 2014, despite the lack of any actual or ongoing harm. It is a stern lesson that he has learnt as a result of this incident, one that he is not likely now to repeat (especially given his otherwise clean record and long career in the marine industry).

Introduction

1. The third relevant factor is that in s 21A(3)(i) as to whether Mr Dudgeon has shown remorse for the offence. The two elements of the provision adapted for Mr Dudgeon are: (i) Mr Dudgeon has provided evidence that he has accepted responsibility for his actions, and (ii) he has acknowledged any loss caused by his actions and has made reparation for such loss

Acceptance of responsibility

1. On 7 January 2014, Mr Dudgeon expressed contrition and remorse for the spill he had caused (Exhibit A - Dudgeon Agreed Statement of Facts at [31]).

Reparation - the clean-up of the spill

1. At approximately 5.45 pm on 6 January, virtually immediately after Svitzer became aware of the spill, Mr Dudgeon was informed. He immediately returned to the Svitzer base to assist with the clean-up operation (Exhibit A - Dudgeon Agreed Statement of Facts at [22]).

Conclusion on contrition and remorse

1. These various actions taken together are an effective demonstration of Mr Dudgeon's contrition and remorse.

Mr Dudgeon's plea of guilty

1. I have earlier set out the position concerning the company's early guilty plea. The same timing of and benefits flowing from that plea apply equally to the early guilty plea by Mr Dudgeon. As a consequence, I am satisfied that Mr Dudgeon is also to be granted the maximum discount of 25%.

Assistance to the Prosecutor

1. The final relevant factor is that in s 21A(3)(m) as cited concerning the company. In Mr Dudgeon's case, it is also not necessary set out the terms of s 23.
2. On 6 January, Mr Dudgeon commenced his assistance to the Port Corporation with its investigation of the spill (Exhibit A - Dudgeon Agreed Statement of Facts at [24]). Mr Dudgeon also attended the Svitzer base on 7 January 2014 to assist Newcastle Port Corporation with its further enquiries (Exhibit A - Dudgeon Agreed Statement of Facts at [31]).
3. I find, on the basis of the Agreed Statement of Facts in Mr Dudgeon's prosecution, that Mr Dudgeon has at all times provided his full cooperation with and assistance to the Prosecutor with its investigations into the incident.

Introduction

1. It is now well-established that the penalty to be imposed is one to be determined by undertaking an instinctive synthesis of all the relevant objective and subjective circumstances of the offence and of the offender (Markarian v The Queen [2005] HCA 25; 228 CLR 357). It is a process that necessitates my consideration, for each Defendant, of the aggregation of the entirety of these factors and their application to each offender.

Deterrence

1. The second of the objectives in s 3A of the Sentencing Procedure Act is "to prevent crime by deterring the offender and other persons from committing similar offences".
2. For the reasons earlier set out, I am satisfied that there is no necessity for any measure of specific deterrence for either Defendant in these proceedings. In each instance there has been prompt co-operation in the clean-up process and there has been appropriate and adequate contrition and remorse expressed by each Defendant.
3. I am satisfied that neither Defendant is likely to re-offend.
4. However, an appropriate penalty reflecting the nature of the offence committed does have utility in providing a general deterrent effect to other entities and individuals whose conduct could potentially result in similar spills if appropriate degrees of risk management and prevention were not taken.

General

1. Although each marine pollution case needs to be considered on the facts and circumstances of the particular event, it is also relevant, in sentencing, to ensure that the sentence given in a particular prosecution is not inconsistent with sentences given in other prosecutions for such events (having regard to the extent that the facts and circumstances of each prosecution may be considered comparable to those of others).

Other potentially relevant marine pollution cases

1. I have carefully considered a number of other marine pollution cases to which I have been referred by Mr Cox and Mr Nell. These cases are:

• Filipowski v Fratelli D'Amato S.r.l and Ors [2000] NSWLEC 50;
• Filipowski v Frey [2005] NSWLEC 661;
• Filipowski v Hemina Holdings S.A.; Filipowski v Rajagopalan (No 2) [2009] NSWLEC 104;
• Newcastle Port Corporation v MS Magdalene Schiffahrtsgesellschaft MBH [2013] NSWLEC 210;
• Newcastle Port Corporation v RN Dredging BV [2013] NSWLEC 217 (RN Dredging); and
• Newcastle Port Corporation v Vazhnenko [2013] NSWLEC 210.

1. I do not consider it is necessary to undertake a detailed analysis of each of them in this judgment.
2. Although they provide some broad assistance in understanding where various oil spills of differing volumes and oil type might be fitted, broadly, within the range of such offences, they are of limited assistance in these proceedings (at best). This is because the volume and/or nature of the substances discharged varied, significantly, from the factual circumstances in each of these proceedings. In addition, although illustrative of differing environmental impacts caused by the individual spill and of the clean-up measures necessary to be employed in response to them, they are sufficiently idiosyncratic that the combination of all the facts and circumstances disclosed in each case do not make available anything which might be considered to be closely comparable to the facts and circumstances here requiring consideration.
3. The most potentially useful of the cases set out above is that of RN Dredging where the same general circumstances (of the Chief Engineer forgetting that he had commenced a diesel fuel oil pumping transfer) arose. However, there were also significant relevant differences that limit utility of consideration of this case. Those limitations are:

• In RN Dredging, only 200 L of diesel fuel oil was spilt; and
• Although the cause of the spill in that instance was also a failure of responsibility of the Chief Engineer, the Chief Engineer was not prosecuted

1. All the cited cases do, however, assist in understanding the broad range of seriousness (as discussed immediately below) within which the facts and circumstances of this spill into Newcastle Harbour should be fitted.

The utility of classifying an offence within a comparative range

1. Camilleri's Stock Feeds (at [698]) also confirmed that "The task of a court is to assess the relative seriousness of the offender's particular offence in relation to a worst case for which the maximum penalty is provided. Having determined the relative seriousness of the offence, the penalty to be imposed is that which approximately correlates upon the scale of penalty set by the legislature from zero to the maximum".
2. Consistent with this, it is necessary to categorise the objective seriousness of the behaviour constituting the offence, in the particular proceedings, as falling somewhere within a range between the least bad case and the worst case of such conduct. This is not a matter of mathematical precision, merely a tool to assist with the instinctive synthesis process needing to be undertaken to assess the appropriate penalty for the relevant Defendant.

CONSIDERATION OF SUBMISSIONS ON SENTENCE FOR SVITZER

1. The sentencing submissions made by Mr Nell SC on behalf of Svitzer acknowledge that an environmental offence such as the pollution of State waters in contravention of s 8 of the 1987 Act is a potentially serious offence. However, he also submitted that Svitzer had reflected this in the formal operating procedures that it had had in place and which, had they been followed by Mr Dudgeon, would have acted to prevent this spill having occurred.
2. Mr Nell also acknowledged, on behalf of Svitzer, that the significant increase in the maximum penalty in 2002 reflected a community aspiration that higher penalties would ordinarily be imposed for such offences. However, he submitted: Offences of low criminality remain offences of low criminality even if the maximum penalty is increased and the increase can readily be recognised as operating as a deterrent to wilful disregard of statutory obligations.
3. However, I am satisfied that, for the reasons earlier articulated concerning the risk of harm to the environment, the volume spilled and attendant risk of environmental harm arising from it are not matters indicative merely of "low criminality".
4. Mr Nell submitted, on behalf of Svitzer, that "the cause of the discharge was not (as the Prosecutor contends) Svitzer's failure to ensure that its then procedures for internal transfer were being followed, either generally or on this occasion".
5. I accept this submission that the lengthy experience of Mr Dudgeon in his role as a Chief Engineer when coupled with the clarity of the procedural instructions for conducting internal fuel transfers meant that Svitzer had every reason to expect that any fuel transfer such as that which has given rise to this spill would be conducted competently and in accordance with the company's mandated procedures.
6. In his submissions for the company (at [61]), Mr Nell also put that Svitzer "should be afforded the benefit of the full extent of the discount of between 35% to 40% that is usually allowed in these cases".
7. In making this submission, he cited six instances as demonstrating what was usually allowed with two of those instances being the Magdalene and the RN Dredging cases noted above. Whilst, perhaps, the use of the word "discount" in this circumstance is not the most apt terminology, I accept that there needs to be, in my instinctive synthesis of all the factors, appropriate consideration of all the matters I need to take into account (but dealing with the question of any discount for the early plea of guilty separately).

THE APPROPRIATE SENTENCE FOR SVITZER

1. Determining the appropriate sentence involves me undertaking an instinctive synthesis of all the objective and subjective factors to determine an appropriate description of the seriousness of the company's conduct and then to consider where this fits, within the range up to the maximum penalty set by the Parliament, to arrive at the appropriate penalty in these circumstances and then, as the following step, to determine the extent to which the penalty so derived should be discounted for the early guilty plea.
2. In his written submissions for the company, Mr Nell submitted (at [34]) that I should conclude that this is not a worst-case offence and (at [63]) "that the present discharge is well within the lowest category in the scale of seriousness propounded by Stein J in Environment Protection Authority v Orange City Council [1995] NSWLEC 103" .
3. In his oral submissions for the company, Mr Nell also proposed that I should adopt the approach taken in Magdalene of following the formulation Stein J in Orange City Council, where he postulated a broad, five-step range of penalties within which, in general terms, the offending behaviour might warrant categorisation and then attaching specified percentage bands to each step.
4. Having considered all the objective factors in Svitzer's case, I am satisfied that it is appropriate to regard the company's offending as being at the upper end of the least worst offences. However, in adopting this position, it should be noted that I am not following the approach taken by Stein J as, in my view, it reflects too great a degree of mathematical precision to be appropriate.
5. I am satisfied, after consideration of Svitzer's objective and subjective factors and undertaking the process of instinctive synthesis of all these, that the appropriate penalty for Svitzer should be a fine of $800,000.
6. I am satisfied for the reasons earlier set out that I should make the maximum allowance of 25% for the utilitarian value of the company's early guilty plea, thus resulting in a fine of $600,000.

CONSIDERATION OF SUBMISSIONS ON SENTENCE FOR MR DUDGEON

1. The position in assessing the objective seriousness in Mr Dudgeon's case is more complex as a consequence of my accepting that his behaviour was, in practical effect, the cause of the spill occurring. In addition to the matters set out above concerning Svitzer, it is also appropriate, briefly, to note the following additional matters concerning Mr Dudgeon that require consideration as to the objective seriousness of his conduct. They are, in short order:

• His conduct had the effect of disabling the alarms that would have alerted him or others to the likelihood of a spill in sufficient time for the spill to be averted or the volume significantly reduced; and
• He left the vessel while the pumping operation was taking place and, subsequently, went home without returning to the vessel to complete the operation and shut down the pump.

1. In particular, as Mr Cox submitted, I am satisfied that leaving the vessel whilst a transfer operation was in progress should be regarded as a significant departure from proper practice.

THE APPROPRIATE SENTENCE FOR MR DUDGEON

1. The process for determining a sentence for Mr Dudgeon is that set out at (134) above.
2. Having considered all the factors in Mr Dudgeon's case, I am satisfied that it is appropriate to regard his offending as being in the lower to mid-range of such offences but toward the upper end of that range.
3. I am satisfied, after consideration of Mr Dudgeon's objective and subjective factors and undertaking the process of instinctive synthesis of all these, that the appropriate penalty for Mr Dudgeon should be a fine of $108,000.
4. I am satisfied for the reasons earlier set out that I should make the maximum allowance of 25% for the utilitarian value of his early guilty plea, thus resulting in a fine of $81,000.
5. In reaching my conclusion concerning the appropriate penalty for Mr Dudgeon, I note that no information has been provided pursuant to s 6(a) of the Fines Act ("regarding the means of the accused as is reasonably and practicably available to the court for consideration") that would cause me to have any reason to depart from this conclusion.

PAYING THE FINES TO THE PORT CORPORATION

1. As earlier noted, in each of the proceedings, the Prosecutor sought, as the third element of the relief claimed, the following: An order that pursuant to s 8 of the Fines Act 1996 (NSW), any fine be paid to Newcastle Port Corporation in accordance with s 21(a) of the Ports and Maritime Administration Act 1995 (NSW).
2. The provision of s 8(1) of the Fines Act upon which this order is sought to be founded is in the following terms: (1) A fine imposed by any court is payable to the registrar of the court unless the court or the registrar of the court otherwise directs.
3. The Prosecutor sought this direction for the payment of the penalties to the Port Corporation as it was submitted as being mandated as a consequence of the provisions of s 21A(1) of the Ports and Maritime Administration Act 1995 (the Maritime Administration Act). This provision is, relevantly, in the following terms: 21A Payment of penalties to Port Corporations (1) There is payable to a Port Corporation all penalties recovered for offences against the marine legislation that are recovered in prosecutions brought by (or penalty notices issued by) members of staff of the Port Corporation.
4. However, as the two prosecutions were initially brought in the name of the Port Corporation itself rather than being brought by a member of the staff of the Port Corporation, s 21A of the Maritime Administration Act was not able to be triggered in these proceedings. The Port Corporation subsequently filed a Notice of Motion in each proceedings seeking to amend the terms of the summons by: 1. substituting Mr Ron Sorensen, the Newcastle Port Corporation's Chief Operating Officer as the Prosecutor; and 2. Adding, as an additional order an order: 3A In the alternative, an order pursuant to section 122 of the Fines Act 1996 (NSW) that half of any fine be paid to the prosecutor, or such other proportion as the Court determines.
5. On Friday 14 August, I held a short supplementary hearing to deal with these Notices of Motion. Mr Cox did not seek to move on the portion of the Notices of Motion seeking leave to substitute Mr Sorensen as the Prosecutor in lieu of the Port Corporation in each of the proceedings.
6. Mr Cox explained that, after further consideration of the matters that had been raised, it had been discovered that the words "the marine legislation" contained in s 21A of the Maritime Administration Act were defined in that Act and in the Ports and Maritime Administration Regulation 2012 in a fashion which did not include the 1987 Act. As a consequence, he acknowledged, there was no utility in seeking to change the Prosecutor for the purposes of these proceedings as I could not be given the power to make an order pursuant to s 21A directing the payment of the penalties arising from these proceedings to the Port Corporation.
7. He did, however, move on the portion of the motions seeking to add, in each proceeding, the proposed order 3A outlined above.
8. As I had excused the representatives of the Defendants from attending at this additional hearing if they did not wish to be heard on any motions for amendment and they had elected to take advantage of this and were not present, I considered that the motions, to the extent moved upon, were uncontroversial and leave to amend to the limited extent sought was granted for each matter.
9. In Secretary, Department of Planning and Environment v Boggabri Coal Pty Limited [2014] NSWLEC, 154 Preston CJ observed at [62]: A justification for making a direction under s 122 of the Fines Act in this case is that, under the Environmental Planning and Assessment Act, the Court cannot make an order that the prosecutor be paid the costs and expenses it reasonably incurred during the investigation of the offence, unlike under s 248(1) of the Protection of the Environment Operations Act 1997. An order that the offender pay the prosecutor's legal costs of the proceedings does not include costs and expenses incurred during the investigation of an offence and before the prosecution has been commenced. Payment of a moiety in the fine to the prosecutor may compensate the prosecutor for the costs and expenses it incurred during the investigation of the offence.
10. As this process of reasoning is equally applicable in each of these proceedings, I have concluded that orders providing that a moiety of each fine be paid to the Port Corporation are appropriate.
11. However, it is not appropriate that the costs of the supplementary hearing on the Notices of Motion be included in the general costs order for these proceedings as this supplementary procedural hearing arose solely because the Port Corporation wished to cure now emerged defects in the orders originally sought in the Summonses.

Mr Dudgeon

1. In Proceedings No 50317 of 2015, the orders of the Court are: 1. The defendant (Graham John Dudgeon) is convicted of the offence as charged in the summons; 2. The defendant is fined the sum of $81,000; 3. The defendant is ordered to pay the prosecutor's costs, other than the costs of the Notice of Motion seeking leave to amend the summons in these proceedings, in the amount as may be determined under s 257G of the Criminal Procedure Act 1986; and 4. Pursuant to s 122 of the Fines Act 1996, the Court directs that one half of the fine in Order (2) is to be paid to the Newcastle Port Corporation.

The company

1. In Proceedings No 50318 of 2015, the orders of the Court are: 1. The defendant (Svitzer Australia Pty Limited) is convicted of the offence as charged in the summons; 2. The defendant is fined the sum of $600,000; 3. The defendant is ordered to pay the prosecutor's costs, other than the costs of the Notice of Motion seeking leave to amend the summons in these proceedings, in the amount as may be determined under s 257G of the Criminal Procedure Act 1986; and 4. Pursuant to s 122 of the Fines Act 1996, the Court directs that one half of the fine in Order (2) is to be paid to the Newcastle Port Corporation. 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. Decision last updated: 28 August 2015