Aggravation, mitigation and proportionality
40None of the aggravating factors listed in s 21A(2) of the CSP Act would strictly apply to this case, but several of the mitigating factors in s 21A(3) do: lack of substantial environmental harm, good character, lack of prior record, prospects of rehabilitation and not re-offending, remorse, assistance to prosecutor, and an early plea of guilty.
41It is agreed between the parties that the defendant entered a plea of guilty at the earliest possible opportunity, cooperated with the investigation, paid clean-up costs, modified the vessel and introduced a new procedure to avoid a similar pollution incident (s 21A(3) (i), (k), (m)).
42The defendant has also accepted that the court will make a costs order against it.
43The defendant also submitted that this was the first offence of its kind, anywhere in the world, for both the defendant and managers, and that no further discharges have occurred since. In cooperating, the defendant sent a letter, via its solicitors, to the prosecutor three weeks after the discharge occurred, informing both of their ownership of the vessel, and that a plea of guilty would be entered (subs par 14). The modification of the vessel may be taken as an indication that the defendant is unlikely to re-offend, is corroborative of a statement of contrition, and that specific deterrence is not a significant factor to be considered (s 21A(3)(g) and (i)).
44In line with the authority in R v Thomson; R v Houlton ("Thomson/Houlton") [2000] NSWCCA 309; (2000) 49 NSWLR 383 at [152]-[160], the full 25% discount should be afforded to the defendant for the utilitarian value of its early guilty plea (Magdalene at [125]).
45The defendant submitted that it should be entitled to a global discount of between 35 and 40%, as a result of the mitigating factors, and relies on the cases of Filipowski v Schiffsbeteiligungsges m.b.H & Co KG; Kleemann ("Kleemann") [2004] NSWLEC 207; (2004) 134 LGERA 48, at [32]; Thomson/Houlton, at [162], Filipowski v Mediterranean Shipping Company SA ("Mediterranean Shipping") [2005] NSWLEC 159, at [90]; Filipowski v Vopak Terminals Sydney Pty Ltd ("Vopak") [2006] NSWLEC 104, at [122] (these cases were discussed in Magdalene, at [259]-[278]).
46In Kleemann, Lloyd J took account of the early guilty plea, prior good record of the defendant, and the payment of clean-up costs to arrive at an overall discount of 35%, which he rounded down to one-third. After surveying the authorities, I arrived, in Magdalene at a similar discount ([278]).
47The principle of proportionality or even-handedness involves the analysis of the general pattern of sentencing for the offences being considered, in order to achieve consistency in approach on penalty.
48The prosecutor identified three cases that should be of assistance to the court, the first of which was Filipowski v Hemina Holdings SA (No 2); Filipowski v Rajagopolan (No 2) ("Hemina") [2009] NSWLEC 104, which involved, he submitted, a spill of comparable volume, and was determined after the 2002 amendments to the Act, increasing the maximum penalty to $10M. Pain J found that the environmental harm was neither substantial nor significant (at [140]), but imposed a fine of $150,000 after a discount of 20% for the plea of guilty. Her Honour found that the owners should have taken more care in the maintenance of the ship, and that that failure contributed directly to the cause of the discharge, reflecting a need for specific deterrence, and not just general deterrence.
49The defendant distinguished Hemina from the present circumstances, as less oil (103-124 litres) was found to have been spilt in Hemina than in the present case (200). The need for specific deterrence and the culpability of the owners were "reflected in a higher penalty than would have been the case", and despite the difference in volume it is submitted that there should not be a significant difference in penalty.
50In Filipowski v Lyndon and ADI Ltd [2001] NSWLEC 139, which predated the increased penalty, a two-fold error, human and mechanical, caused the discharge of 200 litres of diesel fuel - a plug was removed from the underside of a floating dock, and the failure of the sump pump caused the diesel fuel to spill into the harbour. The spill was considered small, but not insignificant, no environmental harm was recorded, the owner notified and cooperated with authorities, paid the clean-up costs and entered an early plea of guilty. The owner had one prior conviction, but otherwise a good environmental record. McEwan AJ found the appropriate global discount to be between 30-35%, as the company had hazard systems in place, and had demonstrated to the court a desire to take steps to improve those systems. The owner was fined $100,000 out of the then maximum penalty of $1.1M.
51The prosecutor also drew the court's attention to Morrison v Ausmarine Fisheries Pty Ltd ("Ausmarine") (1995) 88 LGERA 442, where the owner and Chief Engineer were both charged, after oil discharged into Darling Harbour during bunkering operations, as a result of the failure to shut off a valve. A boom placed around the oil mostly contained the spill. Bignold J concluded from the evidence that somewhere over 200 litres of oil had been discharged, and that several claimed mitigating factors ought not apply, including alleged faults in the ship's design - His Honour found that the Act's rationale goes against "regarding shoddy equipment...as a mitigating factor". The owner was fined $80,000, out of the then maximum of $1M.
52Two years later, in Morrison v Che Mat (1997) 95 LGERA 212, I was satisfied beyond reasonable doubt that 150 litres of oil had been discharged, but only 6 litres was recovered. No evidence of environmental harm was before the court, the leak was not reasonably foreseeable, the Master reported oil on the water with urgency and canvassed the crew to satisfy himself that the oil had not come from the ship. The owner was fined $50,000, and the Master $10,000, the maximum penalties at that time being $1M and $200,000 respectively.
53The defendant referred also to other cases to show the variation in penalty, particularly where "high" fines were imposed on an owner.
54 In Mediterranean Shipping, Bignold J found that a minimum of 180 litres and a maximum of 237 litres had been discharged. The vessel had a poor record of inspections; the defendants should have taken greater vigilance and care, particularly by monitoring the fuel and ballast tanks. The defendants were found to have exemplary seafaring records, and they entered early pleas of guilty, and expressed contrition and remorse. The environmental harm was small and the clean-up appeared to have been entirely successful. The owner was fined $150,000 out of the then maximum penalty of $1.1M. The defendant submitted that, similarly to Ausmarine, the fine was "high", due to the significant adverse findings against the owners, which reflected appropriate 'personal' condemnation.
55Filipowski v Island Maritime Ltd [2005] NSWLEC 73 involved a spill of 140 litres of oil during cargo transfer operations. Insufficient steps were taken to monitor the amount of water and product loaded during the transfer operations, and it was not considered prudent to heat the oil to the extent that occurred in the circumstances (at [24]). There were practical steps the Master could have taken to prevent the spill (at [31]). Talbot J found the offence to be of "moderate seriousness", but the defendants were entitled to a full discount as a result of the early pleas of guilty, cooperation in the investigation of the cause of the offence, clean-up and preparation for hearing. His Honour described the circumstances leading to the offences as "unique" and found that they "demanded innovative remedial action without precedent". He imposed a penalty at the very low end of the scale - the Master was fined $8,000 and the owner was fined $25,000, out of the maximum penalties of $220,000 and $1.1M, respectively.
56The spill in Filipowski v Wallenius Lines Singapore Pty Ltd [2002] NSWLEC 148 occurred as a result of human error, when the capacity of a bilge tank was miscalculated and the bilge tank overflowed (at [6]). The Master had extensive experience as a seaman, and the owner had no previous convictions. Cowdroy J was satisfied that the company was environmentally responsible (at [14]-[15]). The court took into account the strong environmental record of the defendants, and the lack of environmental damage, despite the 500 litres spill, and fined the owner $40,000 out of a maximum of $1.1M.
57In Filipowski v Cadem Shipping Pty Ltd [2005] NSWLEC 552, approximately 500 litres of oil was spilt, when an ordinary inspection would not have uncovered the causatory leak. The environmental harm was assessed almost three years after the spill occurred, and found by the court to be minor. No adverse findings were made against the owner, but it was fined $50,000, the maximum penalty being $1.1M.
58Morrison v Defence Maritime Services Pty Ltd [2007] NSWLEC 421 involved 5-15 litres of oil discharged, with only minor environmental harm. Preventative steps could have been taken by both the Master and owner. The owner was fined $35,000 and the Master, $30,000, the maximum penalties being, by then, $10M and $500,000, respectively.
59In Vopak, 40 litres of oil was discharged during a transfer operation, and the mitigating factors considered were an early guilty plea, expression of contrition, cooperation with authorities, excellent environmental record, and the company's standing as a world leader in its introduction of operational and procedural changes to improve supervision, maintenance and integrity of the pipeline (at [120]). The penalty was discounted by 40%, and the defendant was fined $60,000, out of the maximum penalty of $10M.
60In Filipowski v Magnavia Schiffahrtsgesellschaft & Co Kommanditgesellschaft [2007] NSWLEC 404, Talbot J was satisfied that 30-40 litres of oil had been discharged as a result of a leak from the vessel's lubrication system. Evidence of environmental harm was based on a spill 100 litres greater than what was determined on the evidence. Talbot J took account of the contrition and remorse of each of the defendants, their co-operation in the clean-up and investigation, and the action taken to prevent another occurrence. The owner was fined $25,000 (after a discount of 37.5%), the maximum being $10M.