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8
Court of Criminal Appeal 30 July 2001

THORNELOE v FILIPOWSKI [2001] NSWCCA 213 revised - 1

[2001] NSWCCA 213

Also reported as (2001) 52 NSWLR 60
Other
ENVIRONMENTAL LAW SENTENCING CONSISTENCY MARINE POLLUTION ACT 1987, S27(1) CRIMINAL LAW SENTENCING

Citation: Thorneloe v Filipowski [2001] NSWCCA 213; (2001) 116 LGERA 56; 52 NSWLR 60; 123 A Crim R 92
Court: NSW Court of Criminal Appeal
Date: 30 July 2001
Judge(s): Spigelman CJ, Hulme J, Howie J

Background

The appellant was the Master of a vessel from which a small quantity of oil was discharged into Botany Bay during loading operations. Both the Master and the vessel's owner were charged and pleaded guilty to an offence under s 27(1) of the Marine Pollution Act 1987, a strict liability provision that does not require proof of fault.

At sentencing before Talbot J in the Land and Environment Court, the owner was fined $38,000. The Master sought to have his charge dismissed under s 10 of the Crimes (Sentencing Procedure) Act 1999, which allows a court to find an offence proved but record no conviction and dismiss the proceedings. Talbot J refused and fined the Master $7,000.

The Master appealed, arguing that the refusal to apply s 10 was inconsistent with prior sentencing decisions, that the sentencing judge improperly took into account potential for harm, and that the discretion to dismiss the charge should have been exercised in his favour.

  • Whether the refusal to apply s 10 of the Crimes (Sentencing Procedure) Act 1999 was inconsistent with established sentencing practice in the Land and Environment Court for Masters of vessels in similar circumstances
  • Whether "potential for harm" is a permissible sentencing consideration for a result offence under s 27 of the Marine Pollution Act 1987
  • Whether potential for harm may nonetheless be taken into account in the broader assessment under s 10
  • Whether the Master's inability to have prevented the discharge was a relevant consideration under s 10 that Talbot J failed to take into account
  • Whether the s 10 discretion should be exercised in the Master's favour on appeal

Decision

Inconsistency with prior decisions: The Court of Criminal Appeal held unanimously that Talbot J's refusal to apply s 10 was not inconsistent with prior Land and Environment Court decisions. There was no established practice of automatically applying s 10 where a blameless Master is also charged alongside a convicted owner. Each case turns on its own facts.

Potential for harm as a sentencing factor: The Court confirmed that s 27 of the Marine Pollution Act is a "result offence," meaning sentencing for that offence cannot take into account the potential for a greater discharge than actually occurred. However, the Court distinguished the s 10 inquiry from ordinary sentencing. The scope and purpose of s 10 extends beyond the strict elements of the offence charged, and consideration of the risk to which society was exposed is permissible under the "any other matter" limb of s 10(3). Accordingly, Talbot J did not err in taking potential for harm into account at the s 10 stage.

Failure to consider what the Master could have done: The Court found that Talbot J did err by failing to consider what the Master could realistically have done to prevent the discharge. On the facts, the discharge was caused by a failure of the Chief Officer to follow established procedures. The Chief Officer was experienced, knew the relevant requirements, was subject to disciplinary sanctions, and there was nothing further the Master could have done to prevent the incident. This was a relevant consideration under s 10 that the sentencing judge did not address, causing the discretion to miscarry.

Re-exercise of the discretion: The Court re-exercised the s 10 discretion in the Master's favour. Given his impeccable record, the minimal actual harm, the absence of any personal fault, and the fact that no public purpose was served by convicting someone who could not have prevented the offence, the Court found it appropriate to dismiss the charge without recording a conviction. Hulme J also noted that the conviction and punishment of the owner was relevant to, though not a precondition for, exercising the discretion.

Orders Made

  • Appeal allowed
  • Order of the Land and Environment Court convicting and fining the appellant set aside
  • The offence in proceedings No. 50039 of 2000 in the Land and Environment Court is proved but no conviction recorded, and the proceedings are dismissed
  • Costs order made by Talbot J in proceedings No. 50039 of 2000 against the appellant to stand

Key Takeaways

  • Section 27 of the Marine Pollution Act 1987 is a result offence, meaning the potential for a greater or more harmful discharge than actually occurred cannot be taken into account on the s 27 sentencing inquiry.
  • The s 10 inquiry under the Crimes (Sentencing Procedure) Act 1999 operates differently from ordinary sentencing: its broader scope permits consideration of the societal risk created by the actual discharge, even where the offence is one of strict liability.
  • Even in a strict liability context, no public purpose is served by convicting an accused who could not have taken any effective step to prevent the offence or its consequences, and this principle informed the Court's exercise of the s 10 discretion.
  • No fixed practice exists in the Land and Environment Court of applying s 10 to a vessel Master whenever the owner is also convicted and punished; each case requires an individual assessment of its own facts.
  • In dismissing the charge without conviction, the Court of Criminal Appeal left undisturbed the costs order made against the appellant below, on the basis that the prosecution had been properly brought.

Legislation and Cases Referenced

Legislation:
- Marine Pollution Act 1987 (NSW), s 27(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10
- Criminal Appeal Act 1912 (NSW)
- Clean Waters Act 1970 (NSW)
- Environmental Offences and Penalties Act 1989 (NSW)
- Occupational Health and Safety Act 1983 (NSW)

Key Cases:
- Brownlie v State Pollution Control Commission (1992) 27 NSWLR 78
- McConnell Dowell Constructors (Aust) Pty Ltd v Environmental Protection Authority (2000) 50 NSWLR 127
- Taylor v Environment Protection Authority (2000) 50 NSWLR 48
- Environmental Protection Authority v Bathurst City Council (1995) 89 LGERA 79
- The Queen v De Simoni (1980-1981) 147 CLR 383
- Cobiac v Liddy (1969) 119 CLR 257
- Lim Chin Aik v The Queen [1963] AC 161
- Gammon (Hong Kong) Ltd v Attorney General of Hong Kong [1985] AC 1
- He Kaw Teh v The Queen (1984-1985) 157 CLR 523
- Federal Steam Navigation Co Ltd v Department of Trade and Industry [1974] 1 WLR 505
- R v Ingrassia (1997) 41 NSWLR 447
- Hunter Water Board v State Rail Authority of New South Wales [No 2] (1992) 75 LGRA 22
- Valle v Morrison (NSW Court of Criminal Appeal, 22 November 1995, unreported)
- Leighton v Office of Marine Administration (NSW Court of Criminal Appeal, 5 December 1997, unreported)
- Various Morrison v and Filipowski v series of decisions in the Land and Environment Court