Land and Environment Court New South Wales Medium Neutral Citation: Newcastle Port Corporation v MS Magdalene Schiffahrtsgesellschaft MBH; Newcastle Port Corporation v Vazhnenko [2013] NSWLEC 210 Hearing dates: 12 and 13 June 2013 Decision date: 11 December 2013 Jurisdiction: Class 5 Before: Sheahan J Decision: In Matter No 12/50522 (1) The Court finds the offence proved. (2) The defendant is convicted of the charge set out in the summons. (3) The defendant is fined the sum of $1.2 million. In Matter No 12/50523 (4) The Court finds the offence proved. (5) Pursuant to s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999, I direct that no conviction be recorded, and that the proceedings be dismissed. In Matters Nos 12/50522 - 50523 (6) The defendant MS Magdalene Schiffahrtsgesellschaft MBH is ordered to pay the Prosecutor's costs of both proceedings on a party-party basis, as agreed or assessed, and to pay the Prosecutor's reasonable investigation expenses. (7) With the exception of Exhibit P1, all exhibits may be returned. Catchwords: PROSECUTION: Marine pollution offences by ship in Newcastle Harbour - admissions of guilt predating the summonses - pleas of guilty - sentencing principles - no truly comparable cases - aggravating and mitigating factors. Legislation Cited: Clean Waters Act 1970 Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986 Fisheries Management Act 1994 Marine Pollution Act 1987 National Parks and Wildlife Act 1974 Protection of the Environment Operations Act 1997 Threatened Species Conservation Act 1995 Victims Compensation Act 1996 Uniform Civil Procedure Rules 2005 Cases Cited: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 Blue Mountains City Council v Carlon [2008] NSWLEC 296 Blue Mountains City Council v Tzannes [2009] NSWLEC 19 Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280; (2001) 115 LGERA 304 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683; 82 LGERA 21 Chief Executive of the Office of Environment and Heritage v Bombala Investments Pty Ltd [2013] NSWLEC 185 Chief Executive, Office of Environment and Heritage, Department of Premier and Cabinet v Powell [2012] NSWLEC 129 Chow v Director of Public Prosecutions (1992) 28 NSWLR 593 Cobiac v Liddy (1969) 119 CLR 257 Director-General of the Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121 Director of Public Prosecutions (NSW) v Roslyndale Shipping Pty Ltd [2003] NSWCCA 356 Environmental Protection Authority v Barnes [2006] NSWCCA 246 Environment Protection Authority v Big River Group Pty Ltd [2011] NSWLEC 80 Environment Protection Authority v Boral Australian Gypsum Ltd [2009] NSWLEC 26 Environment Protection Authority v Orange City Council [1995] NSWLEC 103 Environment Protection Authority v Ravensworth Operations Pty Ltd [2012] NSWLEC 222 Environment Protection Authority v Timber Industries Ltd [2001] NSWLEC 25 Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299 Filipowski v Bak and Anor [2004] NSWLEC 498 Filipowski v Fratelli D'Amato S.r.1 and others [2000] NSWLEC 50; (2000) 108 LGERA 88 Filipowski v Hemina Holdings S.A.; Filipowski v Rajagopalan (No 2) [2009] NSWLEC 104 Filipowski v Lyndon and ADI [2001] NSWLEC139 Filipowski v Magnavia Schiffahrtsgesellschaft MBH & Co Kommanditgesellschaft, Pablo Dion and Suzanic Branco [2007] NSWLEC 404 Filipowski v Mediterranean Shipping Company SA [2005] NSWLEC 159 Filipowski v Schiffsbeteiligungsges m.b.H. & Co KG; Filipowski v Kleemann [2004] NSWLEC 207, (2004) 134 LGERA 48 Filipowski v Thorneloe [2000] NSWLEC 269; (2000) 112 LGERA 184 Filipowski v Vopak Terminals Sydney Pty Ltd [2006] NSWLEC 104 Garrett v Freeman (No 5); Garrett v Port Macquarie Hastings Council; Carter v Port Macquarie Hastings Council [2009] NSWLEC 1; (2009) 164 LGERA 287 Garrett v Williams [2006] NSWLEC 785; (2006) 160 LGERA 115 Gittany v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 Graham v The Queen [2009] NSWCCA 212 Hardt v Environment Protection Authority [2007] NSWCCA 338; (2007) 156 LGERA 337 House v R (1936) 55 CLR 499 Hunter Water Board v State Rail Authority of New South Wales [No 2] (1992) 75 LGRA 22 Ibbs v The Queen (1987) 163 CLR 447 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Mickelberg v The Queen (1984) 13 A Crim R 365 Morrison v Che Mat and others (1997) 95 LGERA 212 Morrison v Defence Maritime Services Pty Ltd and Coates [2007] NSWLEC 421 Morrison v Peacock [2002] HCA 44; (2002) 210 CLR 274 Morrison v Peacock and Roslyndale Shipping Co Pty Ltd [2003] NSWLEC 68 Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 R v Ellis (1986) 6 NSWLR 603 R v Gent [2005] NSWCCA 370; (2005) 162 A Crim R 29 R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 R v Mako [2004] NSWCCA 90 R v Olbrich [1999] HCA 54, (1999) 199 CLR 270 R v O'Neill [1979] 2 NSWLR 582 R v Palu (2002) 134 A Crim R 174 R v Peel [1971] 1 NSWLR 247 R v Borkowski [2009] NSWCCA 102 R v Sharma [2002] NSWCCA 142; (2002) 54 NSWLR 300 R v Slattery (1996) 90 A Crim R 519 R v Smith (1982) 7 A Crim R 437 R v Storey [1998] 1 VR 359 R v Sukkar [2006] NSWCCA 92 R v Sutton [2004] NSWCCA 225 R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 R v United Keno Hill Mines Ltd (1980) 1 YR 299 R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 R v Wisbey [2001] NSWCCA 434 R v Gallagher (1991) 23 NSWLR 220 Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267 SZ v The Queen [2007] NSWCCA 19; (2007) 168 A Crim R 249 Thewlis v R [2008] NSWCCA 176 Thorneloe v Filipowski [2001] NSWCCA 213; (2001) 52 NSWLR 60 Tiger Nominees Pty Ltd v State Pollution Control Commission (1992) 25 NSWLR 715; 75 LGRA 71 Veen v The Queen [1979] HCA 7; (1979) 143 CLR 458 Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 Warringah Council v Bonanno [2012] NSWLEC 265 Webb v Chung & Ors [2002] NSWLEC 135 Weininger v The Queen [2003] HCA 14; (2003) 212 CLR 629 Category: Principal judgment Parties: Matter No 50522 of 2013 Newcastle Port Corporation (Prosecutor) MS Magdalene Schiffahrtsgesellschaft MBH (Defendant) Matter No 50523 of 2013 Newcastle Port Corporation (Prosecutor) Volodymyr Vazhnenko (Defendant) Representation: E G H Cox, Barrister (Prosecutor) G J Nell SC (Defendants) Piper Alderman (Prosecutor) James Neill Solicitors (Defendants) File Number(s): 50522 of 2012 50523 of 2012 Judgment Introduction 1These two matters were heard together, after the registered owner (matter 12/50522), and the Master (matter 12/50523), of a bulk carrier pleaded guilty to charges arising from a serious oil spill incident in Newcastle harbour on 25 August 2010. 2The prosecutor was represented in each matter by Mr E G H Cox of counsel, and both defendants by Mr G J Nell SC, and counsel accepted that evidence in either matter would also be evidence in the other. 3The subject ship was "MS" or "MV" Magdalene, registered in Monrovia, the capital of Liberia. (The ship's particulars in Exhibit P8 name the owner as "Prime Shipholding Limited of Monrovia, Liberia"). 4The summons in matter 12/50522 names the ship "MS" (as in "motor ship"), but the particulars in both summonses refer to "MV" (as in "motor vessel"). Both terms refer to "a ship propelled by an internal combustion engine, usually a diesel engine", so it would appear that nothing turns, at least in the present case, on any difference in prefix. 5Magdalene was first commissioned on 16 June 1989 (Exhibit P8), and was acquired by the defendant owner in December 2006. It is of 149,530 deadweight tonnes, and has been managed, since that purchase, by a company based in Hamburg, Germany, and known as "Blumenthal", the Managing Director of which, Heinz-Dieter Czech, swore an affidavit on behalf of the defendant owner. 6The spill incident which is the subject of the charges occurred while Magdalene was berthed, for the purposes of loading coal, at Kooragang Berth No 4 ("K4") on the western side of Kooragang Island, in the port of Newcastle. 7Both summonses give the following particulars of the charges: On 25 August 2010, at approximately 1030 hours, while berthed at Kooragang Berth 4 in the Port of Newcastle, the MV "Magdalene" commenced the deballasting of the number 6 starboard double bottom ballast tank. During the deballasting of the starboard number 6 double bottom ballast tank, oil was discharged from this tank into the Hunter River at the Port of Newcastle. 8Both charges are brought under s 8(1) of the Marine Pollution Act 1987, which makes it an offence, by both owner and Master, for a ship to discharge "oil", or an "oily mixture", into State waters. 9The maximum fines, following major increases in 2002, were at the charge date, and are now, $10M for a body corporate (such as the owner), and $500,000 for a natural person (such as, here, the defendant Master, Captain Volodymyr Vazhnenko). Negotiations between the parties 10As early as 10 December 2010, the solicitors representing the ship wrote to the Chief Executive Officer of the prosecutor (Exhibit M3), making relevant admissions, and conceding that none of the defences available in ss 8(2) and 8(4) of the Marine Pollution Act 1987 were available to the defendants (c.f. Morrison v Peacock [2002] HCA 44; (2002) 210 CLR 274). 11The summonses were not issued until 30 May 2012, but both defendants pleaded guilty to their respective charges at the first opportunity (the first directions hearing on 20 July 2012). 12Negotiations which commenced on or shortly after 10 December 2010, resulted in agreement between the parties on an Agreed Statement of Facts ('ASF'), the final version of which was filed on 24 May 2013 (Exhibit P1). As foreshadowed in the defendants' 10 December 2010 letter, the only "facts" which remained "contentious" at the hearing were of "a small ambit". 13Over that same period the parties also negotiated the reimbursement of clean-up costs. The prosecutor claimed $1,913,197.23; the owner paid $500,000 on 21 December 2010, $800,000 on 20 June 2012, and a final instalment, as agreed, of $400,000 on 10 May 2013, making a total of $1.7M (see ASF 28, and defence subs par 33). Some sentencing issues arising in this matter 14In the context of strict liability offences, Mr Cox notes (in the prosecution's subs, par 6) that there is no suggestion that the discharge the subject of these prosecutions was caused by "any intentional conduct, or recklessness". 15His submission is that this was a significant oil spill, which caused significant actual, but not "long term", harm (T12.6.13, p16, LL25-6, and p39, LL37-8). 16The prosecutor originally accepted (in written subs, par 2), that the defendants' early pleas entitle them to the pleas' "full utilitarian value" on sentence, in accordance with the principles laid down by the New South Wales Court of Criminal Appeal ("CCA") in R v Thomson; R v Houlton ("Thomson/Houlton") [2000] NSWCCA 309; (2000) 49 NSWLR 383. However, Mr Cox later submitted, orally (T13.6.13, p7, L31), that the defendants should get only a "significant" discount in respect of their pleas. 17On the other hand, the defendants claim a total discount on sentence of between 35 and 40% (written subs, pars 104 and 123), or up to 50% (oral submissions T13.6.13, p30, LL20-5). 18The defendants in no way impeded the investigation of the incident. Crew members, including the Master himself, were made available for interview, and provided relevant documents to the prosecutor. Part of the total discount claimed by the defendants is based on such cooperation and assistance, as well as some other mitigating factors. 19Mr Nell (subs, par 116) "respectfully submitted that this is an appropriate case for affording the Master the benefit of an order under s 10(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) [(the CSP Act)] dismissing the offence" ("a s 10 order"). 20Mr Nell also indicated (T13.6.13, p39, LL29-34) that the defendant owner accepted that it would be ordered to pay the prosecutor's costs in both matters. The Relevant Facts 21Much of what follows in this section of this judgment is gleaned from the ASF, but I have also had regard to the prosecutor's unchallenged opening remarks, and the parties' written submissions. The spill 22On 23 August 2010, pursuant to her ballasting procedure (in Exhibit P9), Magdalene "took up" 376 cubic metres of ballast water into its No 6 starboard double bottom ballast tank (ASF 6). 23At the relevant time (i.e. between 0820 and 1500 hours on 25 August 2010), the crew were de-ballasting. 24Tank No 6 is relatively low in the ship, "between the cargo hold and the outside shell of the hull ..." (T12.6.13, p4, LL46-7), adjacent to, and having a common steel wall with, a fuel tank (LL49-50), but the prosecutor notes (T12.6.13, p5, LL1-3): That is a common arrangement as we would understand it for ships of this kind and perfectly acceptable. 25In the course of the de-ballasting of tank No 6, i.e. between 1030 and 1400 hours on the 25th, Magdalene discharged into the Hunter River, on her port side, "a mixture of oily water", containing an agreed amount of 72,000 litres of "heavy fuel oil" ("HFO"), among, or along with, about 500 cubic metres of ballast water (ASF 5 & 6, and T12.6.13, p6, LL1-10). 26The experts suggest that early in the pumping procedure the discharge would have been water only, then oily water, then oil (T13.6.13, p12, LL30-50), but they cannot be definitive about how long each of those three stages might take (T13.12.13, p13). 27At and from about 1435 hours on the 25th, oil was observed drifting on the surface of the water near Kooragang berths 2-5 and into Newcastle Harbour (ASF 7), not only on the port side of Magdalene (T13.6.13, p14, L33). 28Orders were given to stop the cargo and de-ballasting operations, effective at 1500 hours. At around 1500 hours the ship's duty officer (the Second Officer) reported (to the Master) seeing oil, and the Master went to the bridge, and observed it himself (defence subs par 17). Containment and clean-up 29Extensive boom containment action commenced at about 1545 hours on 25 August (ASF 11), and clean-up operations commenced next morning (ASF 17), and continued until 8 October 2010 (ASF 27). Difficulties were encountered due to the thickness of the oil, and a longer-than-anticipated manual clean-up operation was required (ASF 17). 30As already noted ([13] above), the cost of the clean-up was $1.9M, in respect of which the Port accepted a settlement from the defendants in the sum of $1.7M (ASF 28). The cause 31Detailed investigations were carried out on 25, 26 and 27 August (ASF 12-14). 32It emerged as common ground that oil came into the ballast tank as a result of a 15mm diameter hole, which occurred in the internal transverse bulkhead between the ballast and HFO tanks. 33It is understood that the oil would have leaked into the ballast tank over an extended period of time prior to Magdalene's arrival in Australia (ASF 9), i.e. between the maintenance/inspections on about 27 February 2010, and the ballasting operation on 23 August 2010 (T12.6.13, p5, LL35-8). 34That "seeping" process may take "two weeks if the oil was warm and up to two months if it wasn't" (T13.6.13, p10, LL34-5), and the ballast tank had not been used "for ... at least two months" (LL48-9 and p11, LL1-20). 35The prosecutor says (T12.6.13, p5, LL21-3) that it is, "particularly with [an] older vessel, a recognised risk that from time to time you will have corrosion holes develop" in the common wall between the ballast and fuel tanks. The harm 36It is alleged that extensive harm was caused to the Hunter River environment and associated eco-systems, including internationally significant wetlands, but it is conceded that that harm was not permanent. 37The prosecutor notes (T12.6.13, p5, LL37-44): ... [HFO] is a, when cold, a very thick non viscous liquid and ... has to be heated before it can be moved ... as it becomes colder ... it starts to congeal ..." 38Overnight on 25-26 August, the oil originally noticed up to approximately 100 metres from the K4 and K5 berths, and around the ships docked at them (Magdalene and MV Citrus), spread into other parts of the harbour (details in defendants' subs, pars 25-26). On those dates the weather was "cold" (T12.6.13, p5, LL41-4). 39The oil reached up into the North Arm of the Hunter River, at the entrance of the Stockton Channel about one nautical mile south of the Stockton Bridge, by 1430-1500 hours on 26 August 2010 (ASF 13), affecting mangroves and sand beaches (ASF 18), and the Hunter Wetlands National Park (ASF 19). Oil was not apparent in the North Arm at 0630 hours on the 27th (ASF 14). 40The Hunter Wetlands National Park is a Wetlands park of international significance under the Ramsar Convention on Wetlands of International Importance. Australia became a party to the Ramsar Convention on 21 December 1975. This area comprises the Stockton Sand Spit, an important roosting area for 37 species of international migratory birds (ASF 20). 41The movement of the oil spill into and within the Park was caused by strong westerly winds and tidal action. On the day of the spill it would appear that there was a westerly wind of "up to 30knots" blowing (T12.6.13, p8, LL37-45). 42The oil observed in the Stockton Sand Spit wetlands could enter only through the entrance channel to their lagoon (ASF 21-22). Many booms were placed on 25 and 26 August (details in ASF 11), but no boom was placed across the lagoon until early on the morning of the 27th (ASF 15). Doing so before any oil had entered the North Arm adjacent to Stockton Bridge "would have significantly reduced the likelihood of oil entering the lagoon and the Stockton Sand Spit" (ASF 23). 43Further particulars of actual environmental harm are provided in the ASF, as follows (ASF 24-27): 24. There was the potential, if the oil had not been cleaned up prior to the arrival of the international migratory birds in October, for the plumage of the international migratory birds to have been fouled. If oil had interfered with migratory birds, it would have resulted in a loss of the bird's water proofing which makes it difficult for the bird to float, fly, and control its body temperature. This can result in death through hypothermia, dehydration, drowning or starvation. The birds can also ingest the toxic oil resulting in the destruction of red blood cells, alteration to liver function, and adrenal damage. These detrimental effects were avoided due to the clean-up operation by Newcastle Port Corporation. 25. A total of approximately 40-50 pelicans were oiled as a result of the oil discharge from the MV 'Magdalene'. 32 pelicans were required to be transported to Taronga Zoo for intensive care, and rehabilitation which can take upwards to 2 weeks. The oil affects the pelicans in the same way as it affects the international migratory birds as discussed in paragraph 24 above. 26. Light oil spotting was observed on the protected salt-marshes and mangroves in the Hunter Wetlands National Park. Oiled mangroves and salt-marshes needed to be removed of oil because they are an important ecosystem for the feeding, and roosting of international migratory birds. Accordingly, if not cleaned, the negative effect the oil could have had on the international migratory birds and pelicans as described in paragraphs 24 and 25 above would have been exacerbated. This clean up required further damage to the salt-marshes and mangroves through the pruning of oiled leaves, an offence under the Fisheries Management Act 1994 (NSW), in the absence of the appropriate approvals. Pruning affects the following mangrove species in the following ways: a. Sporobolus (grass) and Triglochin (reed) will readily reshoot after cutting provided roots are retained - the roots were retained; b. Sarcocornia (red/green succulent) may resprout, but if not will rapidly recolonise via seed; and c. Suedau (green shrub) will not regrow if cut off at the base - the pruning did not require any shrubs to be cut off at the base. The pruning presented only a very small risk to the long term health of the saltmarsh. 27. The extent and duration of the harm the oil discharge had on the environment was minimised by the clean up initiated by Newcastle Port Corporation which finished on 8 October 2010. However, actual harm was caused and consisted of oil contamination of pelicans, oil spotting of protected saltmarsh and mangrove vegetation, and contamination of invertebrate animals on mudflats. As the harm occurred in areas with a high ecological value, namely a National Park and listed Ramsar Convention wetland which supports a high abundance of internationally protected migratory birds the harm was ecologically significant. 44In terms of potential harm, ASF 29 says: The oil spill had it not been contained and cleaned up had potential to have a far grater impact on the environment. There was potential for: a. international migratory birds to be oiled; b. organisms moving through the Hunter River's surface to be harmed; c. the environment of the substratum including oyster beds, and mud flats to be harmed. d. risk to a significant proportion of the world's Golden Plover population (5% of the world's population are found in the area of the spill); e. mangrove, and salt-marsh leaves could have died if not cleaned; f. mangrove and salt-marshes could have become sources of contamination for snails, birds, lizards and snakes' g. organisms moving on the surface of the water could have become coated with the floating oil. h. oiled animals could have died due to the inability to perform thermoregulation, and blockages to respiratory and feeding mechanisms; and i. Contamination of a larger area of the Ramsar Wetlands, the National Park and the Port Stephens Great Lakes Marine Park. But no such actual harm occurred. The potential for this further harm was avoided due to the clean-up operation by Newcastle Port Corporation. Other matters in the ASF 45The remaining paragraphs of the ASF record the co-operation of the defendants, including the letter of 10 December 2010 ([10] above) and the assistance provided by the Master (ASF 30-31); the 2012 commencement of the proceedings, and the early pleas (ASF 33-4); and the consequent savings in terms of the costs and expenses of the prosecutor (ASF 32). The Master's Affidavit 46The defendant Master affirmed an affidavit on 30 August 2012, in which he expresses his personal contrition (par 5), but also his great concern at the impact of the recording of a criminal conviction against him in these proceedings (pars 11-18). 47He was born on 27 August 1965, in the Ukraine (par 2), and has been at sea since 1989. He qualified as a Master in 1998, and has served as such, continuously, since 2004, almost exclusively on bulk carriers engaged worldwide in the "tramp dry bulk trades", including iron ore, coal, grain, bauxite, alumina and phosphates. In his 21 years at sea around the world, this is the first oil spill incident of his career (pars 6-8). 48His contract for a vessel is usually for 4 to 6 months, with 1-2 months leave between vessels. He took command of Magdalene for the first time on 29 May 2010, in China (pars 9 and 10). 49As the Master of a vessel working in "the tramp trades", he has no fixed circuit of ports, and receives orders from his vessel's operators while at sea. His duties require him to be able to go ashore whenever and wherever he is in port. 50After his 21-year clean record he is concerned that a conviction in the present matter could be used as grounds for the refusal of visas for his entry into certain countries. When completing necessary arrival and customs documentation, he is "commonly" asked if he has ever been convicted of a criminal offence. Other necessary procedures, such as "noting protest", may be similarly affected by a conviction. Any delays in clearance of his vessel by local customs authorities would delay the vessel's operations, costing operators significant amounts of money. He fears this would make operators more reluctant to engage him in future. 51His affidavit is silent, however, as to his experience on ships which are more than 20 years old. Other Evidence in the Defendants' Case 52Apart from the Master's affidavit, the defence relied on an affidavit affirmed by Mr Czech ([5] above). Czech was born in 1959 (pp6 and 7), but Blumenthal has been in business for more than 100 years (par 1), and has managed Magdalene since 2006. Czech deposed that this is also the first time that either the defendant company or Blumenthal has been prosecuted, anywhere in the world, for the discharge of oil into waters. 53Magdalene had completed her five-yearly Special Survey on 1 September 2009. That survey included plate thickness measurements of ballast tanks and bulkheads in June 2009. Diminution of thickness levels was recorded "below the maximum allowable 25%". As a part of the regular programme of inspection, maintenance and repairs on the ship, the ballast tank was inspected on 27 February 2010. Average diminution of steel construction etc. by "spotwise" corrosion is noted as 1 mm (see Annexure 'C', and par 14). 54Mr Czech attaches (as Annexure 'F') a photograph of the offending hole in the bulkhead, and opines (pars 15-16) that it resulted from a "rust nib", which is caused by a small paint-coating flaw which rusts and then "pops out from pressure from the oil in the adjacent tank, leaving a hole through which oil can then leak through into the adjoining tank ... It would be very difficult to see ... unless you were measuring the plate thickness at that exact point of the rust nib...". 55A survey by Magdalene's Classification Society, Nippon Kaiji Kyokai, on 26-27 August 2010 (par 10, and Annexure 'E') measured the hole to be "about 15 millimeters in diameter". 56The hole was quite simply repaired (both temporarily, and later permanently), once identified (par 17), and the "company has taken steps to conduct ... third party inspection to make sure a similar incident does not take place again" (par 18). Evidence in the Prosecutor's Case 57Notwithstanding the agreement reached on the ASF, the defendants made no objection to the prosecutor's reading in support of it of a number of its affidavits and some of their annexures. None of the deponents was required for cross-examination, and their evidence may be briefly summarised: 58Sig Purins is a highly experienced Plant Maintenance Officer with the prosecutor. He was engaged in the management and clean-up of the spill, from 1430 hours on 25 August 2010. He says (par 4) that "it was the worst spill [he] had seen because it was so heavy". He deposes (pars 4-5) to the "distinct smell of oil, and a continuous oval shaped area of black heavy oil", 300m by 200m, extending into the middle of Newcastle Harbour from the K4 and K5 berths, varying in thickness between 5 and 10mm. He says (par 7) that no clean-up operations took place on 25 August, but by 2130 hours that night "the majority of the oil spill had been contained". When the clean-up commenced on 26 August, the spill proved too thick for the skimmers he had deployed, and "a daisy chain" of buckets was established (pars 8-9). 59Purins variously noted, photographed or video'd his observations. The prosecutor tendered (as Exhibit P3) some 41 out of approximately 200 photographs Purins had taken. They depict the thicker areas of pooling, the attempts at using skimmers, manual clean-up operations, oil on rocks, harbour beaches, and other surfaces, numbers of people engaged in clean-ups, the use of the relevant waters by birdlife (no 39), and (no 41) a truck loaded with oil-damaged items apparently removed from affected areas. Also tendered (as Exhibit P4) was a CD, which included 19 video files, taken by Mr Purins, the first five of which were shown to the court, depicting (T12.6.13, p19, LL18-28, and p42, LL38-40): ... the worst and most difficult parts of the cleanup activity taken within I think on the day after, the first major day of the cleanup, cleaning up the worst parts but continuing where it was still thick in the way as described by the witnesses. HIS HONOUR: And generally manual. COX: Generally manual, yes, not using skimmers, using a bucket being passed in a daisy chain type arrangement up to a mini skip so a slow and laborious manual process of cleanup because the oil as it's hit the colder water has congealed and become less manageable and less viscous. 60James Neill Lawson is the prosecutor's Safety and Environment Manager. He was notified at 1430 hours on 25 August, and attended the scene immediately. He observed oil of a "very continuous black colour", and a "pungent smell", and estimated the thickness between two vessels at 20cm (par 4). At that time the oil was confined to the area around K4 and K5. He then became involved in the investigation, including witness interviews, and he deposes to his activities in that regard. Representatives of the Australian Maritime Safety Authority ("AMSA") boarded Magdalene at 1020 hours on 26 August, and she was officially "detained" (see Annexure 'JL3'). The master was interviewed at about 1200 hours, and samples were taken from the No 6 tank. Lawson was on board again on 27 August, conducting further observations, continuing the interview of the Master (Annexure 'JL4'), and then interviewing several other officers. The prosecutor also tendered (as Exhibit P7) a bundle of copies of documents produced by the Master to the investigators during his interview. That bundle included a signed-off copy of the ship's ballast water handling log for 25 August 2010, showing the reduction of water in No 6 tank from 505 cubic metres down to 2 cubic metres. 61Frederick James Eckford is a relief Port Officer with the prosecutor. On 25 August he was Master of MV "Brian Cecil", touring the port with Lawson and another officer, when he took a call advising of the report of the spill. As they approached the spill site, he observed a fuel smell in the air, and "a very black substance" on the water surface, up to 100m out into the harbour from berths K4 and K5, "being pushed to the East by the wind towards the K3 berth" (pars 4 and 11), and later towards K2 (par 13). He was later engaged in the laying and moving of booms. 62Michael Robert Moss is a Ports Services Officer with the prosecutor. He is highly trained and experienced in clean-up and investigation of spills. He attended the subject spill early on 26 August. He deposes in detail to his observations and activities, and annexes an aerial photo (Annexure 'MM1'), plus his notes and shoreline status reports (Annexure 'MM2'). 63Phillip Hawke is a Marine Pilot with the prosecutor, and he performed an "aerial observation" of the port early on 26 August, to identify the area of spread of the spill, before clean-up operations commenced. He observed (par 2) "areas of oil sheen, areas of heavy oil, and areas along the foreshore and seawall rocks covered in oil". His observations were later marked, by the Incident Control Centre, on a map which is annexed to his affidavit. Scott Curline is a Senior Marine Pilot with the prosecutor. He performed a further "aerial observation" early on 27 August, and he also prepared and annexed a map. (A large map of the port, not so marked-up, is before the court as Exhibit P2). 64Malcolm Mountford Goodfellow is a Master Mariner now employed by the prosecutor as a Marine Pilot. Before joining the Corporation, he was a ship surveyor, and served as a Senior Marine Surveyor with AMSA. He inspected the spill, from a Corporation survey vessel at 1430 hours on 26 August; he recorded his observations, and annexed his notes and a plan to his affidavit. 65The prosecutor also relied on an affidavit affirmed by Dr Peter Raymond Scanes, Manager of the Coastal Waters Science Unit of the NSW government agency then known as the Department of Environment, Climate Change and Water. 66He has a distinguished CV, with expertise in estuarine ecology, and oil spill response planning. Since the late 1990s he has been designated as State Environment and Science Coordinator ("ESC") under the NSW State Oil and Chemical Spill Plan implemented by "New South Wales Maritime", as it was then known. 67Scanes was, relevantly, ESC during the Laura D'Amato spill in Sydney Harbour in 1999, and during other major and smaller incidents. (That 1999 incident resulted in this court's decision in Filipowski v Fratelli D'Amato S.r.1 and others ("D'Amato") [2000] NSWLEC 50, (2000) 108 LGERA 88, to which I will return). 68Scanes was engaged by the prosecutor to advise on, and plan for the spill response in, the North Arm of the Hunter, and then, on 19 October 2010 (Annexure 'E'), to provide an expert report for this prosecution. He agreed to be bound by the Expert Witness Code of Conduct, scheduled to the Uniform Civil Procedure Rules 2005. 69His main focus was the Stockton Sand Spit, in the North Arm, at the eastern end of Stockton Bridge, but he was also conscious that the spill impacted on the eastern bank of the Hunter, to both the North and South of the bridge. 70He notes that the Spit is actively managed as a bird habitat, including for migratory "Shorebirds" (or Shoreline Birds), which are protected by international treaties, and are "threatened" under the Threatened Species Conservation Act 1995 ("TSCA"). The Spit is characterised by extensive salt marshes (listed as an endangered ecological community under the TSCA), a lagoon, and "a raised area used by birds for roosting". The National Parks and Wildlife Service and community volunteers control vegetation on the Spit to encourage bird usage, and a bird hide has been constructed to facilitate observation (see aerial photos at Annexure 'C', and page 28 of 'D"). Being part of the Hunter Estuary Wetlands National Park, the Spit and the shores to the north are protected as waterfowl habitat under the Ramsar Convention (ASF 20, and [40] above). 71Scanes was first informed of the spill on the evening of 25 August, but the prosecutor did not, at that stage, require any assistance from his department. On 30 August, he was informed that oil had been reported in the saltmarsh near the bridge, and he obtained and assembled background information, including photos taken on 29 August (Annexure 'F'), in preparation for a field trip to the area on 31 August. He deposes an extensive account of his findings on 31 August and associated research (pars 39-52). 72He then prepared a cleaning strategy for the Spit and adjacent areas, on a segment basis (see diagram "j" at p33), and the clean-up of the Spit area commenced (pars 55-56). He returned to the Spit on 3, 6, and 10 September to review progress, and he made his last official visit on 6 October 2010, for a final inspection under the Site Signoff Plan. 73His expert opinion on environmental harm issues (pars 63-86) formed the basis of those paragraphs of the ASF (24-27) which I have quoted above (at [43]). In par 77 of his affidavit, he notes that "the extent and duration of the harm caused was minimised as a consequence of the rapid action taken to clean up the oil", but he goes on to observe that: Oil persisted on the Spit for a period of at least 10 days. On low priority parts of the shore there was still oil up to 5 weeks after it was initially observed. "Expert" Evidence Written materials 74Apart from the affidavit evidence of Mr Scanes, the parties relied on reports prepared by other witnesses with relevant expertise - Leonard Michaels (for the prosecutor - Exhibit P5), Brendan Quinlan (for the defendants - Exhibit M1), and Richard Howe (also for the defendants - Exhibit M2). 75The court acknowledges and accepts the superior qualifications of these gentlemen to express the relevant views they include in their reports. 76Michaels and Quinlan met, agreed upon a joint report (Exhibit P6), and were called to give oral evidence, some of it concurrently. 77Howe was not called, and counsel for the parties agreed to exclude from the court some of the contents of his report, as the observations he recorded after his more recent visit were made without the more relevant expertise of Scanes on the question of environmental harm. 78What emerges from the written materials of these three witnesses may be summarised as follows: 79Michaels opined that oil was in the ballast tank when the ballast water was taken on board, and would rise to the top of the water as the latter is taken up. That contamination would have been detected if the ballast tank had been either properly sounded or physically inspected before ballasting commenced. He also opined that ballast tanks should be inspected internally between the ship's annual surveys. 80The owner and Master should be well aware of the pollution risks, and it was, therefore, not "reasonable" for them not to manually sound the tank in advance of filling it. He opines that tanks should be sounded routinely once per week during their non-use. In this case tank No 6 had not been used for at least three months. Manual soundings involve dropping a tape down a pipe dedicated for sounding purposes. Any more "remote" methods of sounding indicate only the level of liquid in a tank, and not its content. 81The owner and the Master should also ensure that their crew maintain "a good watch", as in "deck watch monitoring", during any de-ballasting operations. Proper crew training is required for keeping a good watch. 82Magdalene's published de-ballasting procedure is "correct and reasonable", but it neither includes the keeping of a good watch, nor mandates the taking of manual soundings. The ship's age calls for extra attention to these sorts of precautions. 83After Michaels prepared the earlier of his two reports in Exhibit P5 (the one dated 12 February 2013 and summarised above), in which he had assumed that the sounding pipes on Magdalene were "perforated" or "slotted", it became known that they were, in fact, "solid". 84In that circumstance, even a manual sounding would not indicate that the contents of the tank were contaminated, so alternative precautions are essential, in order to ensure that no pollutants enter the environment. He suggests that the defendants should have either (1) dropped the sounding tape down the air ventilation pipe, or (2) if readily feasible, opened the hatch or manhole of the tank and accessed the contents in that way (see T12.6.13, p6, LL21-30). 85Quinlan reviewed Michaels's reports. He rejected the air pipe option, and also opined that gauging systems are not considered accurate. He thought the ship's policy document inferred the need for manual soundings, and he thought it would be "highly prudent" to conduct tank inspections. It would not be unusual, and it accords with proper practice, even if not mandated by it. 86He found the ship's pumping system to be "safe", and able to be "left unattended", but, in his view, officers should "occasionally look over the side" for any signs of mishap. There is always a need to maintain a good watch in port, but he acknowledged "enormous stress" on the crew on 25 August. Magdalene's officers would not be expecting "such a rare and extremely unusual event", but compliance with proper practice requires no more than that someone "occasionally look" over the ship's side. (The evidence suggests that no crew were observing over the side of the ship from which the oil was discharged, namely the port side, during the 4.5 hours from 1030 to 1500hrs - T12.6.13, p6, LL32-40). 87In their joint report, Michaels and Quinlan agree that manual soundings are "standard shipboard practice" for dry bulk carriers, but that "perforated" or "slotted" pipes are not required by either statute or class. 88They relevantly agreed that: (1) ... the Magdalene was following a planned maintenance tank inspection program which required that each water ballast tank be inspected by Ship's Officers at least once every twelve months, and that this program was followed as evidenced by the Ship's planned maintenance program onboard documentation. The Ship had undergone a 20 year survey in July 2009 where plate thickness measurements of No.6 Starboard Double Bottom Tank were conducted. In addition, the tank was visually inspected by Ship's Officers on 27th February, 2010. (2) ... the Master of the Magdalene, by not ordering an inspection of No.6 Starboard Double Bottom Tank prior to use, followed current shipping practices/procedures when deciding to use this tank for filling with ballast water, prior to entering the Port of Newcastle. ... A highly prudent Ships Master or a Ship Owner may order/instruct water ballast tank openings and inspections at a more frequent interval than a 12 monthly Shipboard inspection for each tank as contained within a Planned Maintenance System. This will depend upon the actual condition of the ballast tanks as surveyed by Ships Officers, Class Surveyors and Ship Owners, factors that will affect the actual condition of the tanks are the original protective coatings applied at new build stage, breakdown of tank coatings, extent to which a tank has steel wastage/corrosion since new build, damage to tank coatings from external forces such as cargo grab contact or contact with wharves/tugs etc, susceptibility to steel fracture, and whether a tank is used frequently or is only used on isolated voyages. All these factors will be considered by Ships Masters/Ship Owners when determining a time interval for ballast tank inspections to be included in the Planned Maintenance System. The Ship Master or Ship Owner can order an inspection of a tank at any time they have concerns with a tank, such as time since last tank was used, heavy contact - potential damage, blocked sounding pipes or difficulty with tank suction et al. ... (3) On the day of the incident whilst berthed at No.4 Kooragang Coal Loader Berth, the Magdalene was loading her designated cargo with qualified personnel on deck watches. This included the Cargo Officer On Watch, Chief Officer, Duty Able Seaman and an Able Seaman on Security Watch. The Magdalene was berthed port side to the wharf, with the gangway located aft. The vessel was discharging water ballast from No.6 Starboard Double Bottom Tank through an eductor system. The eductor system discharged its contents overboard on the port side aft. 89They were: ... surprised that the Oil Pollution was not discovered at an earlier time, given the qualified personnel on watch and the quantity of oil discharged. With a more vigilant watch the Oil Pollution would have been detected earlier. 90Howe relevantly visited Newcastle Harbour, with which he is very familiar, on 30 August 2010, and 21 August 2012. 91He included in his report (in par 11) twelve photos taken of the wetlands on 30 August 2010, while the clean-up was still in progress, but he reports that the amount of oil pollution he saw there was "not extensive" (p3). The boom was still in place at the narrow access point (p10). He saw oil on foreshore rocks at the Bird Migration areas, and on driftwood, mangroves etc. 92When he returned on 21 August 2012, he observed (p13) no evidence of oil, and found the water clear, the mangroves and foreshore flora "healthy", and the wildlife "abundant". Counsel for the parties agreed that the court could examine the fourteen photos he took on that visit (T12.6.13, p39), and I have considered them. Oral evidence Mr Quinlan 93Quinlan was called for cross-examination by Mr Cox. He was present when AMSA inspected Magdalene on or about 26 August, and attempted to check tank No 6 by soundings, and he was also present when the cargo hold adjacent to it was inspected. He did not inspect tank No 6, but he did inspect the air vents on deck. He commented (T12.6.13, p49, L3) that "access and soundings are completely separate". He adhered (LL20-3) to the comment in his report that "it wasn't possible to take manual soundings through the air vent pipes". 94He was then questioned about the manhole access to tank No 6, and his observation of the removal of the hatch on cargo hold No 9 by the crew's removal of 12 bolts, with a spanner, an operation which might take about 20 minutes (T12.6.13, p50). That hold would have been cleaned at some stage between its last unloading and the ballasting on 23 August, but, on his inspection, Quinlan could smell HFO (T51, LL1-3). 95Mr Cox and Quinlan then had the following exchange (T12.6.13, p51, LL7-46): COX: And would the removal of that hatch be all that was required to check the contents of the number 6 double bottom ballast tank for any contaminants? WITNESS QUINLAN: Yes. COX: To remove that hatch? WITNESS QUINLAN: Yes. COX: There would be no other steps required to check? WITNESS QUINLAN: You would go inside the tank if you were suspicious of something and that's one way of accessing the tank. COX: In the case of this tank on the 23rd, 24th or 25 August you wouldn't need to go inside the tank to know she was contaminated, would you? WITNESS QUINLAN: You would smell I would suspect. COX: And you would also see the black oil on the walls of the ballast tank? WITNESS QUINLAN: Yeah if it had been filled up with ballast it was on the 23rd, it's quite possible that the - the level of the tank is above that, if the level of the tank is above the tank top you're not going to open it. COX: So you may need to check? WITNESS QUINLAN: You would have to access the other way. COX: But to check for contaminants before you put the ballast water in, that would be the ideal way to check if there was anything in there, wouldn't it? WITNESS QUINLAN: Yes, yes. COX: So if you were concerned about the tank and wanted to check it for whatever reason you would check it before you put the ballast water in, correct? WITNESS QUINLAN: If you had reasonable concerns to - to want to access a tank, yes, through that manhole. 96Mr Cox also questioned Quinlan on the use of perforated sounding pipes, a practice Quinlan described (T12.6.13, p53, L29) as "a reasonably good idea", more commonly adopted on ships built later than Magdalene (LL14-25), but not "a requirement" (LL22-25). They are adopted for a range of purposes, and "not specifically" for checking for contaminants "on top of the water in the tank" (LL31-44). There was then this exchange (LL46-50): COX: It was not possible to check for liquid contaminants in this double bottom tank once there was ballast water in there taking a manual sounding via the sounding pipes, was it? WITNESS QUINLAN: No. 97Alternative methods for checking were then canvassed (T12.6.13, pp54-5). A few options were identified as available, even in the event of there being cargo in the hold. Concurrent evidence 98Michaels then joined Quinlan in the witness box (Tp58), to enable both counsel to clarify the joint expert report (Exhibit P6). 99Neither expert could be more specific than estimating one to two months for the oil to move into the ballast tank (Tp59). 100Insofar as the joint report indicates the witnesses' agreement ([88](2) above) that more frequent inspections than 12-monthly would be "highly prudent" "shipping practice", Quinlan was referring to his own Newcastle experience, but Michaels was referring to "international practice" (Tp60). 101They agreed that not all "masters and operators ... meet that standard of highly prudent" because their "standard will vary" (Tp60, LL33-44), but they agreed also (Tp61) that "current shipping practices" would be to order an inspection of a tank at any time the Master or owner has "concerns with a tank" (see Tp60, L46-p61, L9). 102Michaels went further, however, in respect of owners. He said (T12.6.13, p61, LL13-25, and p61, L46-p63, L20): WITNESS MICHAELS: Well I believe the owner should know a little bit more about his ship and should know it's condition more than the Master would. I would say they would issue instructions if there was anything untoward to the Master to ensure it was done. COX: I'll just ask one more question to Mr Michaels but don't answer it immediately in case there is an objection. In terms of an owner giving instructions to its Master about something that related to the particular condition of the ship, would the procedure to be adopted in respect of having sounding pipes without perforations fall within that category? WITNESS MICHAELS: It would be something that the owners would be aware of. ... WITNESS MICHAELS: If the owner knew from the condition of his ship, from the survey reports and from the conditions of coatings within the tank that they were deteriorating, the ship was old, then he would give some instruction to the ship that these type of things should be done. If the ship was in good condition and the coatings were very good then there would be no reason for it. COX: Do you have any opinion as to what sort of instruction an owner should reasonably do, having regard to shipping practices and procedures internationally? WITNESS MICHAELS: Well I believe that would be internationally what would be done. The owner has the technical expertise which is not on the ship and they would instruct the ship through their planned maintenances for inspection and for, through any procedures where a tank had not been used, to take account of this. They had the report from the class society ,they've got their reports from the recent dockings, and they know the condition of the coatings in their tanks. COX: But the particular recommendations would vary from ship to ship? WITNESS MICHAELS: Yes. Definitely. COX: Mr Quinlan, do you agree or disagree with that or wish to supplement what I have just asked Mr Michaels about? WITNESS QUINLAN: I think the ship owner referring to perforations is a highly specific point. I don't necessarily share the opinion that they would have particular instructions in relation to that when sounding ballast tanks. COX: Would you agree that with sounding pipes that have no perforations such that soundings would not detect a contaminant like oil, that is a risk that some steps should be taken to guard against and have a procedure in place to stop oil pollution. WITNESS QUINLAN: I think the notion that the sounding pipes, whether they are solid or perforated, is a highly specific point in relation to a sounding pipe. I would be, the only way I can explain it is I would be surprised there may be some ship owners that issue instructions in relation to that but I would be surprised if it is the case. COX: Well-- WITNESS QUINLAN: Seems to me it is very very specific, too highly specific. COX: So is your point that you don't think all the ship owners in the world would in fact do it, even though it is a good idea to try and stop pollution. WITNESS QUINLAN: Well the sounding pipe, the primary purpose of the sounding pipe is tank measurement. COX: Yes. WITNESS QUINLAN: If the tank does have perforations it is a secondary means to, to establish not necessarily contaminants such as fuel. As I mentioned previously earlier whether there is mud or silt in the tank, it needs cleaning. COX: But having regard to the fact that it is one purpose, albeit not the primary one, where you can't do it, would you agree that a prudent owner or any reasonable owner should take steps to have in place an alternate procedure where you can't use your sounding pipe. WITNESS QUINLAN: No. The alternate procedure would be a tank inspection. COX: Yes. WITNESS QUINLAN: Yes. In that respect yes. COX: So you would agree that they should have an alternate procedure like a tank inspection. WITNESS QUINLAN: Yes, that is the primary, that is the primary means for inspection, not the sounding pipe. 103In respect of Michaels' reference to a ship being known to be "old", I asked him (T12.6.13, pp63-4) to define "old" for the court, and he responded (Tp63, LL36-46 - emphasis added): WITNESS MICHAELS: Well I think I used the, what the Classification Society views as old and we draw the line at about twenty years. If you look at Classification Surveys, they start off at, you have them at five year intervals. The first five years you look at the ship but don't do any phenomenal depth. Ten years you go more, twenty years you look at everything and then if the ship lasts any longer you keep looking at everything, and so old tends to be in the line of twenty years. HIS HONOUR: And this is post, this is 1989 ? WITNESS MICHAELS: So it's old, yes. 104Mr Nell then put to Michaels (T12.6.13, p64, LL1-40): ... you suggested that a ship owner should give instructions to the Master in relation to, should give specific instructions to a Master where the ship owner is aware that the sounding pipe is a solid pipe rather than a perforated pipe. WITNESS MICHAELS: That's not exactly what I said. What he should do is he should give instructions if he believes the tank is deteriorated. If the coatings have deteriorated, there is wastage in the tank and the tank hasn't been used, because if he had perforated pipes, then he wouldn't have to open the tank up. He can check for any contaminants, if he doesn't have them, then he's got no way of knowing the tank has become contaminated, so the only way then is he takes a risk. He says, "Do I just assume the ship's in tact, the tank's in tact, or do I check it?" And the risk of a tank not being in tact increases if the coatings are to any level broken down and on old ships they normally are, and for the time the vessel has the tank empty. Because when coatings break down, generally you protect the tank by putting an anode in, a zinc anode which will waste away instead of the ship. But when the tank is empty the anode doesn't work. It only works when it is under water. So when the tank is empty it will deteriorate faster. NELL: But do I take it from your answer that you have just given that you don't suggest that the mere fact that a vessel has solid sounding pipes is itself a cause for a ship owner as a matter of practice, good practice to provide the Master with instructions in relation to the inspection of the tanks. WITNESS MICHAELS: No, not if the tank's in good condition. NELL: Your evidence as to that being a matter of practice that such instructions should be given is dependent upon the owner knowing or believing or apprehending that the tank is not in good condition, is that correct? WITNESS MICHAELS: Yes, yes. NELL: And absent such knowledge or apprehension you would agree that it wouldn't normally be practice for a ship owner to provide specific instructions in relation to the inspection of the tank simply because the sounding pipe was a solid not a perforated pipe, is that correct? WITNESS MICHAELS: I'd agree with that but I also there would be very few owners wouldn't know what condition their ships were in. 105Michaels then conceded to Mr Nell (T12.6.13, pp64-5) that his recent experience at sea was very limited, and (Tpp65-6) that ships, including bulk carriers, are "capable of operating at the age of twenty years and plus" (Tp65, LL38-9) if "well maintained" (L48). He said (Tp66, LL9-10 and LL17-20): ... you can find twenty-odd or older than twenty year old ships that are better than ten year old ships. ... [However,] as ships get older they do get damaged, and this damage builds up so the risk is greater as the ship gets old but I agree you could have a ship that was twenty years old in nearly new condition. 106Quinlan then opined (T12.6.13, p66, LL36-48) that, if perforated sounding pipes "were such a critical piece of equipment", they would be "legislated ... and in place", and they are not. However, as noted above (in [102]), it would be "good practice for a ship owner to provide specific instructions to the ship in relation to inspection of the ballast tank for example simply because the sounding pipes happen to be solid rather than of the perforated type", but (T12.6.13, p67, LL1-3) "it's such a specific nature I would seriously doubt the, that many vessels would receive such instruction. Just too specific". 107Questioning then turned (T12.6.13, p67) to the expert witnesses' expression of shared surprise "that the oil pollution was not discovered at an earlier time" (see [89] above). 108Quinlan commented (LL21-30 - emphasis mine): ... I don't know the time at which oil actually entered harbour waters. Given that the tank was pumped for three and a half hours and the adductor (sic) system has a certain rating and we knew there was a certain volume in the tank therefore to say that oil came out as soon as you started the pump can't be said. Whether it was half an hour before 1400 hours, I don't, simply don't know. ... [T]here is a certain period of time where the oil wasn't discovered and that's what I'm referring to and I am clearly saying that with a more vigilant watch that the potential is that that oil being pumped over the side may have been detected at an earlier time. 109Michaels (LL34-38) had a "very similar" view, but added that, "with the pungent smell of heavy oil", he was surprised that "no one on deck saw it, smelt it and picked it up. But you don't have to put much oil in the water to actually smell it and see it". 110Quinlan opined (T12.6.13, p68, LL30-2) that the primary focus of keeping watch is safety - of personnel, the ship, cargo, and the marine environment, but (LL38-9) the officer of the watch has "a whole range of tasks and duties". He further opined (LL46-50) that when de-ballasting first commences, the "designated crew person" would "have a look over the side" in order to be "satisfied that the water ballast going over the side is clean initially", and "that would be as far as examining the ballast itself pretty much ... it". 111Michaels responded on the watch issue (T12.6.13, p69, LL11-22): WITNESS MICHAELS: Well my view is that the watch system is the duty officer who in this case was the second officer. Part of his rounds, while he is going around, he would look over the side of the ship. He wouldn't spend his entire time looking over the side of the ship, but while he was looking after the cargo, while he was checking mooring lines, while he was going out on the quay to check the drafts, and the various other things he would be doing on deck, he would be looking over the side and at that time I would think he would notice that there was oil coming out of the side of the ship. COX: If he was keeping a proper look out. WITNESS MICHAELS: Yes. 112Quinlan then added (T12.6.13, p70, LL11-14): The situation of oil being pumped out through a water ballast tank in my opinion is an extremely low risk event. I really, the officer of the watch keeping his eye out on the marine environment is part of that practice, and I accept that as fair and reasonable, yes. 113Michaels responded (LL23-40): WITNESS MICHAELS: My opinion if the officer on watch does his job properly I think it is fair and reasonable. COX: Yes, very well. WITNESS MICHAELS: I think if the officer is doing his job-- COX: Does his job properly-- WITNESS MICHAELS: Yes. COX: I followed that. WITNESS MICHAELS: Then it is fair and reasonable. COX: But it assumes that that one person will do their job properly. WITNESS MICHAELS: Yes, obviously. Other Tendered Materials 114Apart from the exhibits to which reference has already been made, there are before the court post-incident photographs (in Exhibit P10) of No 6 tank, taken on 26 and 27 August 2010. One of those (p10) is an enlargement of the photograph produced and relied upon by Mr Czech (his annexure 'F' - see T12.6.13, p45, LL26-43). Another (p5) was put to Mr Quinlan during his evidence (T12.6.13, p48, L26). Sentencing Principles 115Both counsel adhered to, and relied upon, pre-prepared written submissions, which they put before the court at the end of the first day, and then enlarged upon them orally on the second day, in light of the first day's evidence (see T13.6.13, p8, LL42-3). 116There was, however, no serious disagreement between them as to the sentencing principles to be applied by this court, but there was some disagreement on their application in the present case. 117This court's sentencing principles have been frequently stated in judgments, usually in summary form. They apply to all environmental offences, not just marine pollution cases, and, because there were many nuances in the submissions made in this particular marine pollution case, I have decided to set out the principles, and some judicial commentary, in more than the usual detail. 118The main principles were usefully listed in Plath v Rawson ("Rawson") [2009] NSWLEC 178; (2009) 170 LGERA 253, to which I will return after quoting some relevant statutory provisions. Relevant statutory provisions 119In determining the penalties in this case, regard must be had to ss 3A, 10, 21A, 22, and 23 of the CSP Act: 3A Purposes of sentencing The purposes for which a court may impose a sentence on an offender are as follows: (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community. ... 10 Dismissal of charges and conditional discharge of offender (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. (2A) An order referred to in subsection (1) (c) may be made if the court is satisfied that it would reduce the likelihood of the person committing further offences by promoting the treatment or rehabilitation of the person. (2B) Subsection (1) (c) is subject to Part 8C. (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. (4) An order under this section has the same effect as a conviction: (a) for the purposes of any law with respect to the revesting or restoring of stolen property, and (b) for the purpose of enabling a court to give directions for compensation under Part 4 of the Victims Compensation Act 1996, and (c) for the purpose of enabling a court to give orders with respect to the restitution or delivery of property or the payment of money in connection with the restitution or delivery of property. (5) A person with respect to whom an order under this section is made has the same right to appeal on the ground that the person is not guilty of the offence as the person would have had if the person had been convicted of the offence. ... 21A Aggravating, mitigating and other factors in sentencing (1) General In determining the appropriate sentence for an offence, the court is to take into account the following matters: (a) the aggravating factors referred to in subsection (2) that are relevant and known to the court, (b) the mitigating factors referred to in subsection (3) that are relevant and known to the court, (c) any other objective or subjective factor that affects the relative seriousness of the offence. The matters referred to in this subsection are in addition to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law. (2) Aggravating factors The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows: ... (d) the offender has a record of previous convictions ... ... (g) the injury, emotional harm, loss or damage caused by the offence was substantial, ... (i) the offence was committed without regard for public safety, ... (o) the offence was committed for financial gain, ... The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence. (3) Mitigating factors The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows: (a) the injury, emotional harm, loss or damage caused by the offence was not substantial, (b) the offence was not part of a planned or organised criminal activity, ... (e) the offender does not have any record (or any significant record) of previous convictions, (f) the offender was a person of good character, (g) the offender is unlikely to re-offend, (h) the offender has good prospects of rehabilitation, whether by reason of the offender's age or otherwise, (i) the remorse shown by the offender for the offence, but only if: (i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both), ... (k) a plea of guilty by the offender (as provided by section 22), ... (m) assistance by the offender to law enforcement authorities (as provided by section 23). (4) The court is not to have regard to any such aggravating or mitigating factor in sentencing if it would be contrary to any Act or rule of law to do so. (5) The fact that any such aggravating or mitigating factor is relevant and known to the court does not require the court to increase or reduce the sentence for the offence. ... 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) When passing sentence on such an offender, a court that does not impose a lesser penalty under this section must indicate to the offender, and make a record of, its reasons for not doing so. (3) Subsection (2) does not limit any other requirement that a court has, apart from that subsection, to record the reasons for its decisions. (4) The failure of a court to comply with this section does not invalidate any sentence imposed by the court. ... 23 Power to reduce penalties for assistance provided to law enforcement authorities (1) A court may impose a lesser penalty than it would otherwise impose on an offender, having regard to the degree to which the offender has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection or investigation of, or in proceedings relating to, the offence concerned or any other offence. (2) In deciding whether to impose a lesser penalty for an offence and the nature and extent of the penalty it imposes, the court must consider the following matters: (a) (Repealed) (b) the significance and usefulness of the offender's assistance to the authority or authorities concerned, taking into consideration any evaluation by the authority or authorities of the assistance rendered or undertaken to be rendered, (c) the truthfulness, completeness and reliability of any information or evidence provided by the offender, (d) the nature and extent of the offender's assistance or promised assistance, (e) the timeliness of the assistance or undertaking to assist, (f) any benefits that the offender has gained or may gain by reason of the assistance or undertaking to assist, ... (3) A lesser penalty that is imposed under this section in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of the offence. (4) A court that imposes a lesser penalty under this section on an offender because the offender has assisted, or undertaken to assist, law enforcement authorities must: (a) indicate to the offender, and make a record of the fact, that the lesser penalty is being imposed for either or both of those reasons, and (b) state the penalty that it would otherwise have imposed, and (c) where the lesser penalty is being imposed for both reasons-state the amount by which the penalty has been reduced for each reason. (5) Subsection (4) does not limit any requirement that a court has, apart from that subsection, to record the reasons for its decisions. (6) The failure of a court to comply with the requirements of subsection (4) with respect to any sentence does not invalidate the sentence. The concept of "Harm" 120The concept of "injury, ... harm, loss or damage" is specifically noted in s 21A(2)(g), as quoted above, as an "aggravating factor", and is raised also by Preston J in his "checklist" in Rawson (at [68], quoted below in [131]). 121On this subject, his Honour had previously remarked, in Environment Protection Authority v Waste Recycling and Processing Corporation ("Waste Recycling") [2006] NSWLEC 419; (2006) 148 LGERA 299, at [145] - [149]: 145 Harmfulness needs to not only be considered in terms of actual harm, the potential or risk of harm should also be taken into account: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 366 and Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34 (6 February 2006) at [175]. Harm should not be limited to measurable harm such as actual harm to human health. It can also include a broader notion of the quality of life. 146 Harm can include harm to the environment and its ecology. Harm to an animal or plant not only adversely affects that animal or plant, it also affects other biota that have ecological relationships to that animal or plant: Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34 (6 February 2006) at [174]. 147 Harm can be direct or indirect, individual or cumulative. Activities that contribute incrementally to the gradual deterioration of the environment, even when they cause no discernable direct harm to human interest, should also be treated seriously. 148 The culpability of the defendant depends in part on the seriousness of the environmental harm. Sentencing courts have exercised their discretion in relation to penalty on the principle that the more serious the lasting environmental harm involved, the more serious the offence and, ordinarily, the higher the penalty: Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority ("Camilleri") (1993) 32 NSWLR 683; [82 LGERA 21, at 701/39]. If the harm is substantial, this objective circumstance is an aggravating factor: s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999. 149 The fact that the environment harmed by the offender's conduct was already disturbed or modified is not a mitigating factor ... Pleas of guilty and discounts 122In respect of s 22, as also quoted above, it is established by the authorities that a plea of guilty amounts to an admission of liability in respect of each element of the offence charged: See R v O'Neill [1979] 2 NSWLR 582, at 588. 123I have already noted ([16] and [17]) that there is some contention between counsel for the parties, concerning the "utilitarian value" of the pleas of guilty in this case, and the "discount" those pleas should attract on sentence. 124It is, therefore, appropriate that I set out the actual principles to be applied when discounting for a plea. 125They were comprehensively stated by Spigelman CJ, on behalf of five senior and experienced judges in the CCA, in its 2000 "guideline judgment" in Thomson/Houlton (citation in [16] above), at [152]-[162] (emphasis mine, but some citations omitted): 152 In my opinion, the appropriate range for a discount is from 10-25 per cent. 153 The determination of where, within such a range, the discount should fall in a particular case is a matter for the discretion of the sentencing judge. 154 There are however two circumstances which will generally affect the appropriate level of discount in a particular case: (i) The time at which a plea is entered. ... (ii) The complexity of the issues about which evidence will have to be gathered and adduced affects the value of the plea. The greater the difficulty of assembling the relevant evidence and the greater the length and complexity of the trial, the greater the utilitarian value of a plea. 155 The top of the range would be expected to be restricted to pleas at the earliest possible opportunity and should not be given, save in an exceptional case, after a matter has been set down for trial. A discount towards the bottom of the range is appropriate for late pleas, for example, on the date fixed for trial, unless there are particular benefits arising from the prospective length and complexity of the trial. 156 Rare cases involving exceptional complexity and trial duration may justify a higher discount. In some cases no discount is appropriate at all. In some cases the "discount" will be reflected in a step down in the hierarchy of sentencing options. 157 There are circumstances in which the protection of the public requires a long sentence to be imposed so that no discount for the plea is appropriate ... 158 There are crimes that so offend the public interest that the maximum sentence, without any discount for any purpose, is appropriate. ... 159 It is also pertinent to state that a discount of 10-25 per cent is not a range within which trial judges may exercise a discretion that will not be subject to appellate review. Appeals against severity or leniency of sentence focus on the range which is appropriate for the particular case, not on the range appropriate for pleas in the full variety of circumstances: Conclusion: 160 The Court should adopt the following guideline applicable to offences against State laws: (i) A sentencing judge should explicitly state that a plea of guilty has been taken into account. Failure to do so will generally be taken to indicate that the plea was not given weight. (ii) Sentencing judges are encouraged to quantify the effect of the plea on the sentence in so far as they believe it appropriate to do so. ... (iii) The utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10-25 per cent discount on sentence. The primary consideration determining where in the range a particular case should fall, is the timing of the plea. What is to be regarded as an early plea will vary according to the circumstances of the case and is a matter for determination by the sentencing judge. (iv) In some cases the plea, in combination with other relevant factors, will change the nature of the sentence imposed. In some cases a plea will not lead to any discount. ... 162 The discount range propounded for a guilty plea based on utilitarian considerations is not intended to result in any change in the level of sentences generally. Nothing in these reasons should be construed as indicating an opinion that trial judges have not in fact been giving appropriate consideration and weight to pleas in such a way as to distort the general level of sentences. The purpose of identifying a discount range is to improve the transparency of the process and to alter the widespread perception that there is no benefit from an early plea. In so far as existing sentencing practice has been to allow discounts for pleas up to 35 per cent, encompassing all relevant matters, such a practice remains appropriate. 126The application of the principles in Thomson/Houlton was discussed by Howie J (with whom Studdert and Dunford JJ agreed, without comment) in R v Sutton ("Sutton") [2004] NSWCCA 225, a case in which the CCA reviewed a sentence imposed for "aggravated dangerous driving occasioning death". 127Howie J said, in Sutton (at [12],[13] and [16]): 12 This Court has pointed out, time and time again, that the strength of the Crown case is an irrelevant factor in determining the utilitarian value of the plea of guilty. The strength of the Crown case is relevant only to the evaluation of remorse and what weight should be given to that factor in determining the appropriate sentence.... 13 ...In the present case the strength of the Crown case was completely irrelevant because his Honour found that the applicant was genuinely remorseful. The utilitarian value of the plea was as significant as a plea made at the first opportunity in the Local Court could be. The Crown before this Court relied upon the fact that the present would not have been a lengthy or complex case had the applicant sought to defend the charge. But that is a factor that will only rarely affect the benefit obtained by the plea and it is not the reason given by his Honour for devaluing it. ... 16 ... As Dunford J noted in R v Mako [2004] NSWCCA 90 at [21]: In all cases the important consideration is to expose the transparency of the process so that it can be seen that an appropriate discount has been allowed. 128The "guilty discount" question, and, indeed, the appropriateness of using the word "discount", were considered by Howie J, in another principal judgment of the CCA, in R v Borkowski ("Borkowski") [2009] NSWCCA 102, at [31]-[36] (most citations omitted): 31 As a matter of general practice, the maximum discount for the utilitarian value of the plea of guilty should be awarded only to those accused persons who plead guilty in the Local Court and continue that plea of guilty in the District Court. There may be a valid reason in the exercise of discretion for awarding the maximum discount where the plea of guilty does not occur until the District Court but that would be exceptional and arise from the peculiar factual situation in a particular case. The amount of the discount cannot depend upon the practice of the particular court based upon its administrative arrangements. It is difficult to see how, in the usual case, a plea of guilty on arraignment could justify a discount of more than about 15 per cent. There was nothing in the present case that justified a discount above that range. 32 It should not be necessary to do so, but, because there appears to be discrepancies in the application of the discount for the utilitarian value of the plea, it is apposite to set out in point form the principles laid down by this Court and to be applied by sentencing courts. Of course these are principles of general application and are subject to the scheme set out in and regulations made under that Act: 1. The discount for the utilitarian value of the pleas will be determined largely by the timing of the plea so that the earlier the plea the greater discount: Thomson/Houlton at [154]; ... 2. Some allowance may be made in determining the discount where the trial would be particularly complicated or lengthy: Thomson/Houlton at [154]. 3. The utilitarian discount does not reflect any other consideration arising from the plea, such as saving witnesses from giving evidence but this is relevant to remorse: Thomson/Houlton at [119] to [123]; nor is it affected by post-offending conduct: ... 4. The utilitarian discount does not take into account the strength of the prosecution case: Sutton: ... 5. There is to be no component in the discount for remorse nor is there to be a separate quantified discount for remorse: ... 6. Where there are multiple offences and pleas at different times, the utilitarian value of the plea should be separately considered for each offence: ... 7. There may be offences that are so serious that no discount should be given: Thomson/Houlton at [158]; ... where the protection of the public requires a longer sentence: ... 8. Generally the reason for the delay in the plea is irrelevant because, if it is not forthcoming, the utilitarian value is reduced: ... 9. The utilitarian value of a delayed plea is less and consequently the discount is reduced even where there has been a plea bargain: ... or where the offender is waiting to see what charges are ultimately brought by the Crown: ... or the offender has delayed the plea to obtain some forensic advantage... such as having matters put on a Form 1: ... 10. An offer of a plea that is rejected by the Crown but is consistent with a jury verdict after trial can result in a discount even though there is no utilitarian value: ... 11. The discount can result in a different type of sentence but the resulting sentence should not again be reduced by reason of the discount: ... 12. The amount of the discount does not depend upon the administrative arrangements or any practice in a particular court or by a particular judge for the management of trials or otherwise. The last of these principles is derived from the present judgment and is included for completeness. 33 There also appears to be some looseness in the use of the expression "a discount" that is apparent in the exchange between the prosecutor and the Judge set out above. Since [Thomson/Houlton] ... a "sentencing discount" should be taken to mean a reduction in the otherwise appropriate sentence by a quantifiable amount due to a specific policy consideration. Such a discount is applied after the otherwise appropriate sentence has been determined. There are two sentencing discounts that have been identified: a discount for the plea of guilty and a discount for assistance. Where both these discounts apply they should be combined: ... The High Court has indicated that there should be limited use of "arithmetical deduction" in determining an appropriate sentence: Markarian v The Queen ("Markarian") [2005] HCA 25; 228 CLR 357 at [39]. 34 There are also matters that mitigate the sentence. They are taken into account in the general synthesis to determine what is the appropriate sentence before the application of a discount. The mitigating factors include remorse and what has come to be known as the "Ellis discount" [for disclosing otherwise unknown criminality], although R v Ellis (1986) 6 NSWLR 603 was decided at a time when separate and discrete discounts in sentencing had not been recognised. 35 There is the possibility of at least confusion and perhaps even error occurring by referring to any general mitigating factor as giving rise to "a discount". For example, in his sentencing remarks the Judge stated in reference to the respondent: .........I am satisfied that in fact he is remorseful and that is strongly shown by his plea of guilty. Subsection 3(k) is involved, that is the plea of guilty. I have already indicated how I intend to take it into account in relation to the utilitarian value of the plea. As far as the remorse factor is concerned a plea of guilty is always evidence or contrition and remorse or at least it is in most cases and it certainly is in this case. But I wish to make it plain that I have given one discount for remorse, not two. 36 In the present case the discount for the plea of guilty was unduly favourable to the respondent as a result of the erroneous exercise of discretion of the Judge and should have been no more than 15 per cent. However, in light of the fact that the prosecutor erroneously conceded before the sentencing judge that the discount should be 20 to 22½ per cent, I am of the opinion that the Court should not interfere with the sentence on this basis. 129Some other authorities on the application of the relevant principles governing discounts will be discussed in the "consideration" section of this judgment (from [205] below), but I will now return to Rawson ([118] above). Plath v Rawson 130Rawson was a prosecution under the National Parks and Wildlife Act 1974, and Preston J set out in his judgment a useful "checklist" of relevant considerations to be factored into the setting of a penalty for any environmental offence. 131It is worth quoting at length from his Honour's analysis, with which I respectfully agree. He said (at [46]-[214]: OBJECTIVE GRAVITY OF THE OFFENCES 46 The primary consideration in sentencing is the objective gravity or seriousness of each offence. The objective gravity fixes both the upper and lower limits of proportionate punishment. It fixes the upper limit because a sentence should never exceed that which can be justified as appropriate or proportional to the gravity of the crime considered in light of its objective circumstances. It fixes the lower limit because allowance for the subjective factors of the case, particularly of the offender, cannot produce a sentence which fails to reflect the objective gravity or seriousness of the offence: Gittany v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 at [108], [109] and cases therein cited. The objective circumstances of the offence and the purposes of punishment inform the lower limit of sentencing discretion, a bottom line beneath which a sentence cannot legitimately be set: SZ v The Queen [2007] NSWCCA 19; (2007) 168 A Crim R 249 at [4]-[6] and Graham v The Queen [2009] NSWCCA 212 at [43], [44]. 47 In assessing the objective gravity or seriousness of the offence, the sentencing court may have regard to not only the physical acts of the offender and their effects, as those acts or effects could be observed by a bystander, but also circumstances which are personal to the offender at the time of the offence which become objectively relevant because of their causal connection with the commission of the offence. These include the mental state of the offender and the reasons for committing the offence: see R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 at [85]-[86]. 48 In determining the objective gravity or seriousness of each of the offences in this case, the circumstances to which the Court may have regard include: (a) the nature of the offences; (b) the maximum penalties for the offences; (c) the harm caused to the environment by commission of the offences; (d) the state of mind of the offender in committing the offences; (e) the offender's reasons for committing the offences; (f) the foreseeable risk of harm to the environment by commission of the offences; (g) the practical measures to avoid harm to the environment; and (h) the offender's control over the causes of harm to the environment. Nature of offences 49 A fundamental consideration of relevance to environmental offences is the degree by which, having regard to the maximum penalties provided by the statute in question, the offender's conduct would offend against the legislative objectives expressed in the statutory offence: R v Peel [1971] 1 NSWLR 247 at 262; Garrett v Williams [2006] NSWLEC 785; (2006) 160 LGERA 115 at [89]; Garrett v Freeman (No 5); Garrett v Port Macquarie Hastings Council; Carter v Port Macquarie Hastings Council [2009] NSWLEC 1; (2009) 164 LGERA 287 at [52]; Director-General of the Department of Environment and Climate Change v Rae [2009] NSWLEC 137 at [15]. ... Maximum penalty 57 The maximum penalty for the offence is of great relevance in determining the objective gravity of the offence. The maximum penalty reflects the public expression by Parliament of the seriousness of the offence: see Camilleri [in 32 NSWR at 698F, or 82 LGERA at 36]. It also provides a sentencing yardstick for the case before the court. As the High Court noted in [Markarian] at [31]: "It follows that careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick." ... Harm to the environment 68 The objective seriousness of the offence is affected by the objective harmfulness of the offender's actions. The causing of "substantial" injury, loss or damage by commission of the offence is an aggravating factor: s 21A(2)(g) of the [CSP Act] ... ... State of Mind of offender 97 The offence [charged] ... is a strict liability offence and mens rea is not an element of the offence. A person does not need to know that the plant concerned is of, or is part of a threatened species, an endangered population or an endangered ecological community ... 98 Nevertheless, the state of mind of a person at the time ... can have the effect of increasing the objective seriousness of the offence. A strict liability offence that is committed intentionally, negligently or recklessly will be objectively more serious than one not so committed: Gittany Constructions Pty Ltd v Sutherland Shire Council at [123]; Hardt v Environment Protection Authority [2007] NSWCCA 338; (2007) 156 LGERA 337 at [53]; Garrett v Freeman (No 5) at [68], [356]; Director-General of the Department of Environment and Climate Change v Rae at [42], [46]. Offences committed deliberately are more serious than offences committed due to inadvertence or error: Garrett v Williams at [103] and Garrett v Freeman (No 5) at [68]. ... Reasons for committing the offence 126 The criminality involved in the commission of an offence is to be measured not only by the seriousness of what occurred but also by reference to the reasons for its occurrence: see Garrett v Williams at [120] and cases therein cited. ... Forseeability of risk of harm ... Practical Measures ... Control over causes ... Conclusion on objective circumstances 139 Having regard to the nature of the offence; the high maximum penalties; the high degree of actual environmental harm caused by Mr Rawson's conduct constituting the offences; Mr Rawson undertaking the conduct deliberately and in reckless disregard as to whether his conduct was lawful or not; Mr Rawson undertaking the conduct constituting the offences to earn a fee; the foreseeability of risk of harm to the environment by reason of commission of the offences; the existence of practical measures to avoid that risk of harm; Mr Rawson's control over the causes of harm to the environment, the offence should be considered to be of medium objective gravity or seriousness. SUBJECTIVE CIRCUMSTANCES OF THE DEFENDANT 140 Within the limits set by reference to the objective gravity of the offences, the Court may take into account the favourable factors personal to the offender. Factors to be considered are: lack of prior criminality; prior good character; plea of guilty to the offences; contrition and remorse; and assistance to authorities. Lack of prior criminality 141 Mr Rawson does not have any prior convictions for any environmental offences. This is a mitigating factor: see s 21A(3)(e) of the [CSP Act]. Prior good character 142 There is evidence that Mr Rawson has been, otherwise than committing the offences for which he has been charged, a person of good character. This is another mitigating factor: s 21A(3)(f) of the [CSP Act] ... 143 Prior good character can have both a negative and a positive aspect: Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267 at [27]. The negative aspect of good character can refer to the absence of prior convictions and otherwise not having previously engaged in other criminal conduct: Weininger v The Queen [2003] HCA 14; (2003) 212 CLR 629 at [25]. The positive aspect of good character can include a history of prior good works and contribution to the community: Ryan v The Queen at [27]. The reason for prior good character being a mitigating factor is that a "morally good" person is less deserving of punishment for a particular offence than a "morally neutral or bad" person who has committed an identical offence: Ryan v The Queen at [30], [31]. 144 Good character may operate to reduce the sentence which the objective facts of the offence would otherwise attract: Ryan v The Queen at [174]. As with prior criminality, prior good character is not part of the objective circumstances of the offence: R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 at [17]. Prior good character is relevant to where, within the boundary set by the objective circumstances, a sentence should lie: R v McNaughton at [26]. 145 There are two distinct stages in using prior good character in the sentencing process. First, it is necessary to determine whether the offender is of otherwise good character. Secondly, if so, it is necessary to determine the weight that must be given to that mitigating factor. The weight that must be given to the offender's otherwise good character will vary according to all the circumstances: Ryan v The Queen at [23], [25]. 146 The weight to be given to prior good character depends, to an extent, on the character of the offence committed: R v Smith (1982) 7 A Crim R 437 at 442; Ryan v The Queen at [143]; R v Gent [2005] NSWCCA 370; (2005) 162 A Crim R 29 at [51]. ... 148 Environmental offences are another illustration of a class of offences committed by person who, typically, are of prior good character. They very rarely have previously engaged in other criminal conduct and mostly do not have any prior convictions for environmental offences. The prevalence of the commission of environmental offences by persons of otherwise good character, and the importance of the sentence for environmental offences achieving the purpose of general deterrence, makes the fact that the offender is of otherwise good character of less relevance than it might be in sentencing for other types of offences. ... Plea of guilty 150 Mr Rawson ... is entitled to a discount for the utilitarian value of his pleas of guilty to the criminal justice system. In assessing the utilitarian value of the pleas, the timing of the pleas is a critical factor: [Thomson/Houlton] at [154]-[160]. A plea entered at the earliest possible opportunity has more significant utilitarian benefit and should attract a higher discount, than a plea entered at a later stage. Section 22(1)(b) of the [CSP Act] requires the sentencing court to take into account not only the fact that the offender has pleaded guilty but also "when the offender pleaded guilty or indicated an intention to plead guilty." Sentencing courts in New South Wales are required to give full force and effect to s 22 in accordance with its terms: R v Sharma [2002] NSWCCA 142; (2002) 54 NSWLR 300 at [68]. 151 ... the reason for a delay in a plea of guilty is generally irrelevant because, if a plea is not forthcoming, the utilitarian value is reduced: [ Borkowski] ... at [32(8)]. As a result of the delay in this case, the discount to be afforded for the utilitarian value of the pleas of guilty should be reduced from the maximum of 25% stated in the guideline judgment of the Court of Criminal Appeal in [Thomson/Houlton] at [160]. 152 Another factor that affects the utilitarian value of the pleas of guilty to the criminal justice system is the extent to which the offender has contested unsuccessfully the facts that form the basis for sentence. It is well settled that the utilitarian benefit of a plea of guilty is affected not only by the timing at which the plea is entered but also by the difficulty of assembling the relevant evidence and the length and complexity of the trial. A plea of guilty that avoids the necessity for and difficulty of gathering and adducing evidence on complex issues and a lengthy and complex trial will be of greater utilitarian benefit: [Thomson/Houlton] at [154]. 153 However, the utilitarian benefit of a plea of guilty in such a case will be reduced where the offender, by the plea, admits only the essential legal ingredients of the offence but otherwise contests the factual basis of the plea and on which the court should pass sentence. Any dispute as to factual matters beyond the essential ingredients admitted by the plea must be resolved by accusatorial process upon evidence before the court applying ordinary legal principles appropriate to a criminal trial: Chow v Director of Public Prosecution at 605; R v Palu at [21]. If the contested factual matters, by their nature, extent or complexity, necessitate gathering and adducing evidence and a lengthy or complex sentence hearing to resolve the factual basis for sentence, the utilitarian benefit to the criminal justice system that ordinarily should have resulted from the plea of guilty, such as avoiding evidence gathering and a lengthy and complex trial, and the associated costs, will be dissipated: see also Filipowski v Hemina Holdings S.A.; Filipowski v Rajagopalan (No 2) [("Hemina")] [2009] NSWLEC 104 at [161]-[166]. ... Contrition and Remorse 157 Apart from the utilitarian value of a plea of guilty, genuine contrition or remorse is a further mitigating factor. However, s 21A(3)(i) of the [CSP Act] states that remorse shown by the offender for the offence will only be a mitigating factor if: "(i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both) ...". 158 The existence of genuine contrition or remorse is also relevant to the weight that needs to be given in sentencing to individual deterrence and the prospects of rehabilitation of the offender: [Thomson/Houlton] at [116]. Contrition by an offender can be associated with insight by the offender into the reasons for, or factors contributing to, the offending conduct. If an offender has insight into the offending conduct, there is a reduced risk of reoffending and a reduced need for a sentence to be imposed for the purpose of individual deterrence: R v Wisbey [2001] NSWCCA 434 at [31]. ... Assistance to authorities 165 A sentencing court may impose a lesser penalty than it would otherwise impose on an offender, having regard to the degree to which the offender has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection or investigation of, or in proceedings relating to, the offence concerned or any other offence: see s 23(1) of [CSP Act]. ... Appropriateness of fine 202 A fine is the most common sentencing option and often the most appropriate penalty for environmental offences. The fine embodies the legislative view, based on community standards, of the seriousness of criminal conduct. A fine can achieve the purposes of sentencing of retribution, accountability, denunciation and deterrence. A fine is appropriate in the circumstances of the offences and the offender in this case. ... Prosecutor's costs 214 The prosecutor seeks an order under s 257B of the Criminal Procedure Act 1986 that Mr Rawson pay the prosecutor's costs. ... 132Preston J also noted (in [217]) that the penalty to be imposed in a particular case is to be determined by what the High Court calls "an instinctive synthesis of all the relevant objective and subjective circumstances of the offence and offender": Markarian, at [37], [39], [66], [72], and [73]. See also Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120, at [26]. 133In Rawson, Preston J found an absence of "contrition and remorse" (see [159]-[164]). However, in Waste Recycling ([121] above), his Honour had made several more detailed comments on the tests a court should apply: 203 Contrition and remorse will be more readily shown by the offender taking actions, rather than offering smooth apologies through their legal representatives. The actions underlying genuine contrition and remorse may take at least four forms. 204 First, the speed and efficiency of action to rectify any harm caused or likely to continue to be caused by the commission of the offence is the clearest indication of contrition and remorse. Where it occurs it justifies a reduction in the sentence: Mickelberg v The Queen (1984) 13 A Crim R 365 at 370; s 21A(3)(i) of the Crimes (Sentencing Procedure) Act [1999] and R v United Keno Hill Mines Ltd ("Keno") (1980) 1 YR 299 at [24] 205 The defendant promptly took action to prevent further pollution. The bund wall was immediately repaired on discovery of the overflow to stop any further discharge from the bund. Mill Creek was dammed 1,500m downstream of the entry point of the leachate within one and half hours of discovery of the overflow. This was downstream of the natural rock bar which, in fact, was acting as a barrier to further downstream movement of the pollution. ... 206 Thereafter the defendant co-operated fully with the EPA to select and implement appropriate mitigation measures. ... 207 Water quality sampling and testing and monitoring was carried out by and on behalf of the defendant. The defendant provided an incident report to the EPA ... ... 209 These actions to rectify the harm caused were appropriate and timely ... 210 Secondly, voluntarily reporting the commission of the offence and any concomitant environmental harm to relevant authorities indicates a genuine desire to act responsibly. Environmental regulation depends upon the integrity of persons making full disclosure. Voluntarily reporting breaches should therefore be acknowledged as a mitigating circumstance by the courts in sentencing: Keno at [24]. 211 The defendant voluntarily reported the incident ... some 3 hours after the overflow was discovered ... 212 Thirdly, the taking of action to address the causes of the offence, such as designing and installing improved pollution prevention and control systems, also indicates a genuine desire to act responsibly: [Camilleri] at 700-701/38-9. 213 The defendant, by itself or by directing Cleary Bros, has taken active steps to ensure that the type of incident does not happen again. These steps have been set out earlier in the judgment ... 214 Fourthly, the personal appearance of corporate executives in court and their personal evidence outlining the company's genuine regret and stating future plans to avoid repetition of such offences is an indication of genuine corporate contrition: [Keno] at [26] ... Further discussion of the Rawson principles 134The principles discussed in Rawson regularly inform this court's sentencing decisions. Each case clearly turns on its own particular facts, and pays closer attention to the principles most relevant to those facts. 135Some of Craig J's emphasis and comments in Chief Executive of the Office of Environment and Heritage v Bombala Investments Pty Ltd ("Bombala") [2013] NSWLEC 185, especially at [35]-[41], are also worth noting here (emphasis mine): * The sentence must reflect, and be proportionate to, the objective and subjective factors in the synthesis: Veen v The Queen [1979] HCA 7; (1979) 143 CLR 458, at 490; Veen v The Queen (No 2) ("Veen No 2") [1988] HCA 14; (1988) 164 CLR 465, at 472; Bombala, at [35]. * Facts adverse to the defendant must be proved beyond reasonable doubt, and those favourable to the defendant on the balance of probabilities: R v Storey [1998] 1 VR 359, at 369, adopted in R v Olbrich [1999] HCA 54, (1999) 199 CLR 270, at [27]; Bombala, at [39]. * The objective gravity of the offence establishes not only the upper limit of the appropriate penalty, but also the lower limit below which the court should not move. The "subjective mitigating features should never produce a sentence that fails to reflect the gravity of the incident or the objectives of punishment, which include both retribution and deterrence": Waste Recycling at [140]; Bombala, at [40]. * "The principle of evenhandedness in sentencing requires the court to have regard to the general pattern of sentencing for offences of the kind being considered", being careful to identify the factual differences among cases: Bombala, at [115]. 136As noted by Preston J in Rawson (at [57]), the maximum penalty prescribed by statute for the relevant offence is of "great relevance" to the question of "objective gravity". Craig J also noted, in Bombala (at [41]), that the imposition of the maximum penalty is "reserved for the worst or most reprehensible case, ... [as it] reflects the seriousness with which Parliament and, by extension, the general community, regards an offence". Craig J referred also to Camilleri on this point. 137In Camilleri, Kirby P observed (in 32 NSWLR at 698F, or 82 LGERA at 36-7, in section "2"), quoting also from Veen (No 2), at 478: A maximum penalty is to be imposed where the case falls within the worst category of cases for which the penalty is prescribed. This is to be determined on the facts of the case: Ibbs v The Queen (1987) 163 CLR 447 at 452. However, 'that does not mean that a lesser penalty must be imposed if it be possible to envisage a worse case; ingenuity can always conjure up a case of greater heinousness. A sentence which imposes the maximum penalty offends this principle only if the case is recognisably outside the worst category': [Veen No 2] 138In terms of "evenhandedness" ([135] above), the court must search for "comparable sentences", and the cases examined must be checked against any legislative movement in penalties. In Morrison v Defence Maritime Services Pty Ltd and Coates ("Defence Maritime") [2007] NSWLEC 421, Biscoe J said, in this respect (at [60]): 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 [("Carbonne")] (2001) 115 LGERA 304 at 312; ... 139In Cabonne, Giles JA said (at [37] - emphasis mine): The courts must, of course, recognise the maximum penalty provided for an offence, and with an increase in the maximum penalty there will come the imposition in some cases of higher penalties (see R v Slattery (1996) 90 A Crim R 519 at 524). It does not follow, as the respondent's submissions appeared to suggest, that every offence for which a fine of $X would have been imposed under s 16 of the Clean Waters Act should result in a fine of $2X under s 120 of the Act. 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. It remains necessary to address the facts of the particular case, with due regard to the current maximum penalty and the seriousness of the offence and to the need for deterrence thereby indicated together with all other relevant matters. We were referred in this regard to par 33 of the judgment of Pearlman CJ of the LEC in Environment Protection Authority v Timber Industries Ltd (2001) NSWLEC 25, a passage of which both the appellant and the respondent indicated acceptance, and I would respectfully endorse what her Honour said in that passage. 140In par 33 of Pearlman J's judgment in Environment Protection Authority v Timber Industries Ltd [2001] NSWLEC 25, the case to which Giles JA referred in Cabonne (above), Her Honour said (emphasis mine): 33 The maximum penalty for a breach of s 120 of the POEO Act in the case of a corporation is $250,000 (s 123(a)). It is to be noted that, upon the enactment of the POEO Act, the maximum penalty for water pollution offences in the case of a corporation was doubled - that is, the maximum penalty was increased from $125,000 to $250,000. That does not mean, however, that the Court should simply impose a penalty effectively twice that which the Court would have imposed had the offence been committed before the coming in to force of the POEO Act on 1 July 1999. Rather, the proper approach of the Court must be to assess the relative seriousness of the particular offence in relation to a worst case for which the maximum penalty of $250,000 is now provided; that is, the penalty to be imposed is that which correlates upon the scale of penalty set by the legislature from zero to the maximum: [Camilleri] ... at 698. The increase in penalty must be taken as indicative of the legislature's reflection of community standards in relation to the seriousness of the offence (R v Slattery (1996) 90 A Crim R 519), and it is the increased penalty against which the penalty for this particular offence must be measured. 141The present case falls to be determined under a penalty regime in which the maximum penalties were dramatically increased following a notable case a few years earlier involving a major spill (namely, D'Amato - [67] above). I will return, in the "consideration" section of this judgment ([205] below), to analyse D'Amato and its legislative aftermath. Section 10 Orders 142I turn now to record some principles which apply to applications (such as Mr Nell's on the defendant Master's behalf in the present matter) for orders under s 10 of the CSP Act. 143In Thorneloe v Filipowski ("Thorneloe") [2001] NSWCCA 213; (2001) 52 NSWLR 60, the CCA reversed the decision of Talbot J, in this court (Filipowski v Thorneloe [2000] NSWLEC 269; (2000) 112 LGERA 184). 144The case involved the discharge of a small amount of oil into Botany Bay, during loading operations, in circumstances where there was a potential for a much larger discharge. The Master of the vessel was convicted and fined, Talbot J refusing an application for a s 10 order. 145On appeal, the CCA found the offence proved, but dismissed the proceedings, recording no conviction. It allowed Talbot J's costs order against the Master to stand. 146By reason of its similar factual situation, and the possible application of s 10 in the present matter, Thorneloe is of special relevance, even though the Master in that case was charged under a different provision (s 27) of the Marine Pollution Act 1987. 147The appellant Master in Thorneloe made five submissions alleging error on Talbot J's part (at [44]-[48]): (1)His Honour did not apply properly the principle of consistency in sentencing. (2)His Honour erred when he took into account the "potential" for damage to the environment and not merely the actual harm that had occurred. (3)His Honour failed to take into account the circumstances of the case, in that he failed to give any/adequate consideration to the grounds that existed for the exercise of the power in s 10. (4)His Honour failed to "adequately articulate his reasons" (This submission was quickly rejected ([188]-[190])). (5)His Honour's decision to record a conviction, and impose a penalty, was, in the circumstances, "contrary to public policy and the evinced purposes of the Act". (This submission was "barely pressed", and was also rejected ([191]-[192])). 148Only submission (3) was upheld by the CCA, but Spigelman CJ also made some useful remarks when dealing with submissions (1) and (2). 149On the first submission, the "consistency" issue, his Honour surveyed a large number of cases, including many marine pollution cases ([54]-[122]), and relevantly said (at [113] and [115]): 113 My review of the authorities indicates that the Court has consistently stated that there is no practice for a "blameless" Master to be discharged without conviction, whenever the company is convicted. ... Each case requires the exercise of a discretion on the basis of the whole of the circumstances. ... 115 The authorities indicate that the Master is not discharged under s10 in cases where the discharge has been caused by a failure in the operations on board, save where another senior employee with direct responsibility has been convicted. 150On the second submission, the "potential" issue ([123]-[158]), his Honour relevantly said (at [146]-[158]): 146 In my opinion, a sentence for an offence under s27 of the Marine Pollution Act 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 difference [sic] offence for sentencing purposes, i.e. a larger "discharge". ... 151 The discretion conferred by s10 is wide-ranging. There is no warrant for treating the scope and range of matters which it is "proper" for a sentencing judge to take into account in a narrow way. Nevertheless, it is a discretion which must be exercised judicially. The identification of relevant considerations turns on the scope and purpose of s10. ... 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 s27. ... 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". The second submission should be rejected. 151In dealing with the successful third submission regarding possible grounds for a s 10 order ([159]-[187]), Spigelman CJ said (at [165]-[186] - emphasis mine): 165 In Hunter Water Board v State Rail Authority of New South Wales [No 2] [("Hunter Water")] (1992) 75 LGRA 22], at 23, Stein J said: "This Court has not infrequently stated that it will be a rare case when a dismissal under s556A is seen as appropriate for an environmental offence, especially a breach of the Clean Waters Act." 166 On appeal to this Court, Gleeson CJ, with whom Cripps JA and Slattery AJ agreed, said at 726G that there was no error in his Honour's approach to penalty. 167 The formulation "a rare case", or equivalent words, has been applied in the Land and Environment Court a number of times. .... ... 170 I would reject the Appellant's general submission that the result itself suggests legal error. However, one of the Appellant's specific submissions requires further consideration. As noted above, the Appellant challenged whether Talbot J had given any, or, alternatively, adequate consideration to the fact, for which the Appellant contended, that no reasonable action on the part of the Master could have averted the incident. 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 s10 of the Sentencing Act, in the context of a strict liability offence, to consider what the applicant for the benefit of s10 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. ... 182 His Honour appears to have applied a practice that has developed in the Land and Environment Court to hold the Master responsible for discharges occasioned by some defect in operations, save where the senior officer directly responsible is convicted. That will be an appropriate outcome in many, if not most cases. The approach is not applicable in all cases. ... 184 The circumstances, particularly the unblemished record of the Appellant and the small size of the discharge indicate that this is an appropriate case for the exercise of the discretion. Consideration of what the Master could have done to avert the discharge supports this conclusion. ... 186 No doubt some further guidance or training might have made a difference in each case, but it is difficult to identify any effective step which the Master could have taken that does not require virtual perfection. 152Hulme and Howie JJ concurred in the Chief Justice's decision. While Howie J made no remarks of his own, he specifically agreed (at [219]) with both "the orders proposed and reasons given by both Spigelman CJ and Hulme J". 153Hulme J relevantly said, in his remarks agreeing with the Chief Justice in Thorneloe: 196 Turning to the second ground of appeal, substantially for the reasons given by his Honour, I am of the view that in the determination of a sentence for an offence under s27 of the Marine Pollution Act, it is not permissible to take into account the potential for a discharge of a greater quantity than in fact occurred or of the potential for damage of such a larger discharge. That is not to say that the potential for harm of the actual discharge the subject of the offence is not relevant, even if greater than the harm that did occur. Thus I would respectfully agree with the approach of Stein J in [Hunter Water], at 23 that where harm is less than it might otherwise have been by reason of fortuitous events for which a Defendant can claim no credit a Court is entitled to take into account against a Defendant what might have happened as a result of the discharge which constitutes the offence. To go this far accords with the general tenor of authority which permits weight to be given to the possible consequences of a Defendant's conduct in the course of commission of a crime. 197 In relation to this second ground, there remains the question whether in any consideration of s10 of the Crimes (Sentencing Procedure) Act, 1999, the potential for harm of a (potential) greater discharge which did not occur may be taken into account as an "other matter that the court thinks proper to consider." 198 In empowering a court to either dismiss a charge or discharge on a good behaviour bond an offender who is guilty, s10 permits the adoption of a more lenient approach than merited by the strict application of the relevant law against which a defendant has offended. However it is clear that it is not only mitigating circumstances to which regard may be had. Thus while the matters referred to in sub-paragraphs (b) and (c) of sub-section 3 are of that nature, those in sub-paragraph (a) are not necessarily so. 199 The express reference in sub-paragraph (c) to only those circumstances which are "extenuating" provides some ground for the view that "any other matter" in sub-paragraph (d) should not be regarded as extending to circumstances which are of an aggravating kind. On the other hand any judgment of whether the circumstances in which an offence is committed are extenuating of necessity requires attention to all such circumstances including those which, in isolation, might be regarded as of an aggravating nature. It would be unreal to suggest that such matters could be taken into account in determining whether an offence is committed in extenuating circumstances but for no wider purpose and thus it seems to me that "any other matter" in sub-paragraph (d) includes all the circumstances of an offence. 154His Honour quoted from Talbot J's first instance decision ([143] above, at p188), and noted: 204 From the passage I have quoted, it appears that His Honour regarded the potential for significant harm, the lapses in proper procedure and what he saw as the Master's ultimate responsibility for these as sufficient to outweigh the other factors he mentioned and which argued for the application of s10. His Honour did not advert to the topic of what, if anything, the Master could have done to prevent the lapses. 205 That such a matter is relevant to the exercise of the discretion under s10 is amply demonstrated by the reasons of the Chief Justice. To them I would add only this. Of the 5 principal general considerations in sentencing - general deterrence, personal deterrence, retribution, rehabilitation and protection of the community - see [Veen (No 2)], the last two are normally of little additional consequence where, as in this case, the penalty takes the form of a fine. Retribution may well have a part to play but save insofar as considerations of deterrence may cause actual or prospective offenders to cease activities which have associated with them risks of the commission of strict liability offences, there is little point in punishing someone for an event which he could have done nothing to avert. 206 And the topic of what the Appellant could have done is in my view of such significance that Talbot J's failure to refer to it is indicative of error. His Honour has failed to "take into account some material consideration ... his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so" - House v R (1936) 55 CLR 499 at 505. 155His Honour then explored (in [207]-[213]) what the appellant "could have done", and concluded (in [214]): In summary, I see no grounds for thinking that there was anything further the Appellant could have done to avoid the discharge which occurred. While that, of course, does not relieve him of liability under s27 of the Marine Pollution Act 1987, it is a matter properly to be taken into account under s10. Talbot J did not do so and thus his sentencing discretion miscarried and it falls to this Court to re-sentence. 156In Defence Maritime, Biscoe J declined to extend to either the owner or the Master the benefit of a s 10 order. His Honour noted (at [40]): The offence for which s 8 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. 157His Honour then quoted from the Chief Justice's judgment in Thorneloe (at [146] - quoted above in [150]), and continued: 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]. 158Biscoe J referred on several more occasions to Thorneloe, and applied its principles in reaching his decision: see, especially, [50]-[58] of his Honour's judgment. 159In Chief Executive, Office of Environment and Heritage, Department of Premier and Cabinet v Powell ("Powell") [2012] NSWLEC 129, I said (at [153]-[156]): 153 I have carefully considered the s 10 submission, against the factors listed in s 10(3), and the principles laid down in leading authorities on the exercise of the discretion. I reject Mr Littlemore's criticism of Biscoe J's sentencing remarks in Blue Mountains City Council v Carlon [2008] NSWLEC 296 ("Carlon"), in which his Honour convicted the defendant and made a costs order, but imposed no monetary penalty. His Honour discussed and applied the principles concerning a dismissal under s 10 (at pars [67] - [74]), before invoking s 10A instead. The comments which Mr Littlemore questioned occurred in pars [70] - [71] of his Honour's remarks (citations omitted): "70 This is a strict liability offence in which mens rea plays no part and guilt is established by proof of the objective ingredients of the offence ... It is unusual in the case of strict liability offences for a defendant to receive the benefit of s 10, even if the defendant genuinely believed that it was lawfully entitled to undertake the prohibited activity. The reason for imposing a penalty even where such a belief is held, has been expressed in various ways to similar effect: to invoke the deterrent purpose of educating the offender and the community in the law's proscriptions so that the law will come to be known and obeyed; to ensure that persons take proper steps to ascertain the lawfulness of their proposed conduct; to give effect to the system of planning controls. ... 71 In the context of strict liability pollution of the environment offences, it has been said that it is a rare case when a dismissal under s 10 is seen as appropriate ..." 154 His Honour referred to the remarks of Spigelman CJ in [Thorneloe] ... (at [165] - [169]), regarding the "rare" application of the old "s 556A" discretion, which is now in s 10, in environmental and occupational health and safety cases. After reviewing some English authorities, the Chief Justice said (at [178] and [184]): "178 It is, in my opinion, relevant to the exercise of the discretion under s10 of the Sentencing Act, in the context of a strict liability offence, to consider what the applicant for the benefit of s10 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. ... 184. The circumstances, particularly the unblemished record of the Appellant and the small size of the discharge indicate that this is an appropriate case for the exercise of the discretion. Consideration of what the Master could have done to avert the discharge supports this conclusion." 155 In this case I accept that the defendant has an "unblemished record", but I do not accept that his infraction of the law was "small". Biscoe J was in a similar position in Carlon, and said (at [72] - [74]): "72 The prosecutor opposes an order under s 10(1)(b), essentially because the offence was not of a trivial nature and the defendant failed to take the steps of asking Mrs Tzannes whether there was a council consent to clearing work and, if so, asking to see it. While conceding that the offence was not of a trivial nature, the defendant points out that that is not necessarily dispositive of its application. The defendant submits (in terms of s 10(2)) that in all the circumstances the Court should be satisfied that it is inexpedient to inflict any punishment (other than nominal punishment) or that it is expedient to release the defendant on a good behaviour bond. 73 It is necessary to take into account all the criteria in s 10(3). The defendant is an honest person of unblemished character who has spent his life in voluntary and hazardous community service. He is a first offender. He is 39 years of age. There is nothing about his health or mental condition which is of relevance. Although the offence is not of a trivial nature, there are extenuating circumstances in which the offence was committed and other circumstances to which I think it is proper to have regard. First, he genuinely and not irrationally believed from what Mrs Tzannes told him that she had obtained any necessary council approval for the clearing work: see [53] - [54] above. Secondly, he carried out the work, in which he was inexperienced, not as part of a business but reluctantly at the request of Mrs Tzannes because of a family connection. Thirdly, the mitigating factors referred to at [58] above. Fourthly, although there was environmental harm, the site appears to be revegetating satisfactorily and the harm was not, of course, in the category of harm that may kill the earth such as in an oil spill. Fifthly, the offence is at the low end of criminality. Sixthly, his limited means: see [59] - [61] above. 74 On the other hand, the defendant knew that the council officers had not expressly approved clearing of trees and vegetation or the use of a bulldozer to clean up. In those circumstances it would have been prudent for the defendant to have checked, or to have requested Ms Tzannes to check, with the council whether the council approved the cleaning up being done by use of a bulldozer, which would necessitate clearance of trees and vegetation. As the defendant failed to do so, in my opinion considerations of general deterrence make it appropriate, in the circumstances of this case, to record a conviction in order to educate contractors and others who carry out development to take prudent steps to ensure that necessary approvals have been obtained." 156 I respectfully agree with both Spigelman CJ and Biscoe J, and I reject the defence submission that s 10 is appropriate in this case. 160In Warringah Council v Bonanno [2012] NSWLEC 265, I said (at [52]-[55]): 52 Mr Nagle asked the court to dismiss the charge, without proceeding to a conviction, pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999. To make such an order is a gesture of mercy. As Windeyer J said in Cobiac v Liddy (1969) 119 CLR 257: The whole history of criminal justice has shewn that severity of punishment begets the need of a capacity for mercy. ... [A] capacity in special circumstances to avoid the rigidity of inexorable law is of the very essence of justice. 53 One factor listed as relevant, in s 10(3), is the "trivial" nature of the offence. The relevant authorities in this court, such as Biscoe J's judgment in [ Carlon]... (at [67]-[74]), do not support exercising the discretion where the offence is not "small". As this offence is far beyond trivial, in order for the defendant to obtain a s 10, the court would have to be satisfied of some relevant "personal characteristics of the defendant", some extenuating circumstances, or some "other matter that the court thinks proper to consider" (see Lloyd J in Blue Mountains City Council v Tzannes [2009] NSWLEC 19 ('Tzannes'), at [47]ff). 54 Spigelman CJ indicated, in Thorneloe ... (at [165]-[184]) that the discretion should be rarely invoked in environmental matters, and not where aversion of the harmful event was within the power of the offender. 55 Again in this matter, as in Powell, I affirm my agreement with Spigelman CJ and Biscoe J, and I reject the submission, despite what can be put in favour of the defendant: see Thewlis v R [2008] NSWCCA 176, at [40]-[42]. I note also that I am conscious that the defendant has committed to pay costs: see Tzannes, and Environmental Protection Authority v Barnes [2006] NSWCCA 246, at [88]. Submissions Prosecution submissions 161Following, generally, the agenda of considerations set out for sentencing judges by Rawson, Mr Cox's submissions for the prosecution may be summarised as follows: 162He identified six factors relevant to the question of objective seriousness: (1)Size of the spill - This is not a numerical consideration, dependent simply on measures such as volume of oil, area of pollution, number of dead animals, or affected birds, number of sick people identified, number of species threatened, etc. Mr Cox identified, in his analysis of the authorities, on the basis of volume: (a) "catastrophic" spills (such as the major international spills, e.g. that involving the Exxon Valdez), (b) large or "big" spills (such as the present case, and larger quantities, e.g. in D'Amato), (c) smaller and larger "medium" spills (100-200 litres c.f. 500-1000 litres), and (d) "small" spills (50 litres), and he grouped the authorities and penalties accordingly, in the schedule which he attached to his written submissions. In terms of "big" spills, the present case must be compared with D'Amato, and I will return later to that comparison and the legislative consequences of D'Amato ([205] below). Suffice to note here the prosecutor's comment (subs, par 13): The present case, like [D'Amato] should be regarded as a serious offence but not the worst kind of conduct. The penalty which the court should impose should recognize that seriousness, together with elements of both general and specific deterent (sic). (2)Cause of the spill and measures reasonably available to avoid or minimise environmental harm - On the question of pinpointing the cause of the discharge, the prosecutor's written submissions urged the court to make findings of fact along these lines (adapted from subs par 7, and supplemented by me): (a)Because the sounding pipes lacked perforations, the manual soundings did not detect oil in the ballast tank. Additional checking of the tank was needed, before de-ballasting commenced, especially with the increased risk of corrosion as a result of the tank's having been empty for a time (together with a risk of significant environmental damage). (b)A "proper watch" should have been in place, especially in the absence of perforated pipes, but "there was no watch [kept], nor any system [in place] to ensure a watch was kept on 25 August 2010", and the discharge, which occurred between 1030 and 1400 hours on that day was not observed by the crew, until the ship was advised of the spill, by the coal terminal operator, at 1500 hours. The experts agree that, quite apart from tank inspection prior to the commencement of de-ballasting, a proper watch system during de-ballasting ought to have detected contamination at an early stage, without the risk of significant environmental damage. (c)A "highly prudent" owner and a "highly prudent" Master, in the above circumstances, "would have ordered an inspection of the ballast tank be conducted before use. This, whilst not a class requirement or invariable international practice, was a simple and cost-effective measure available to the defendants to prevent a foreseeable risk of environmental harm". Also under this "cause" heading, Mr Cox submitted, orally, that the degree of "fault" found must be graded in a scale from "worst case" downwards. He opined that the "worst case" would be a "catastrophic spill", or an "intentional discharge", or would perhaps involve a "repeat offender" (T13.6.13, p2, LL14-17). The present case and D'Amato were "big" spills which were "neither intentional nor reckless, but there were steps reasonably available" to prevent them (LL18-19). Here the spill was of 72,000 litres of HFO, and in D'Amato it was 294,000 litres of heavy Murban Crude oil, and in both cases the court relied on assessments by experts, both as to cause, and as to "available measures". (3)Amount of environmental damage - In the present case, the damage done was "significant" and "lasting ... but not permanent" (T13.6.13, p1, L20 and p6, L38). (See ASF 16-21, pars 63-86 of Scanes's affidavit, and pars [65]-[73] above). All the harm caused was not completely cured by removal of the oil - vegetation needed to be pruned etc, and the land affected needed more time to recover (T12.6.13, p6, LL34-7). (4)The clean-up required and its costs - Substantial and difficult clean-up activities required in this case took some six weeks, and cost the authorities (and the ship owner as a result) $1.7M. (See ASF 10, 11 and 20, and [13], [29]-[30] above). (5)The period during which there was a culpable failure to detect the spill - Pumping of contaminated ballast water out of the ship continued for some 4.5 hours without detection by crew (c.f. 25 minutes in D'Amato). The prosecution likens this delay to a "repeated offence" (T13.6.13, p7, L17). (6)The area of harbour over which the spilled oil spread - A large area of the harbour was quite seriously covered by the spill (see ASF 10, 11, 20, and [37]-[41] above). However, adverse weather conditions contained the area to some extent (T13.6.13, p7, LL21-5). 163Looking more closely at the question of cause/measures (in factor (2) above), I note the following points made by the prosecutor in oral submissions: (i) Failure to fit the ship with perforated sounding pipes. Perforated sounding pipes are not mandatory, but the experts agree they are desirable. Their absence makes precautions (2)(a) and (b) above more necessary. If the pipes on Magdalene had been perforated, oil would have been detected, and an inspection would have been indicated. (ii) Failure to keep a proper watch during de-ballasting operations. There is no evidence of anyone looking over the side when de-ballasting commenced, and a clear inference can be drawn, from all the evidence, that not even desirable "occasional checks" were made while it continued. The prosecutor considers that this failure should also be visited more on the owner than the Master (T13.6.13, p6, LL22-5). (iii) Failure to inspect tank No 6 before filling it with ballast water. On Quinlan's evidence, there were two means of access available to a suitable hatch for an inspection - one through the cargo hold, and the other through the small "void" space near the topside ballast tank (T12.6.13, p54, LL25-28 and T13.6.13, p5, LL5-8). In either case a 10-20 minute job of removing 12 bolts is all that was required (T13.6.13, p5, LL8-13. See also [94]-95] above). The prosecutor notes the age of the ship, but makes no claim that its maintenance was poor "in any sense". Non-use of the tank for some time increased the risk, and would "warrant a decision to inspect" (T13.6.13, p5, LL18-25). The prosecutor does not say that the Master lacked prudence in not ordering such an inspection, but it would be "reasonable practise" (sic) to do so (LL27-31). There is a heavier onus in this respect on the owner, who knows its ship better than a newly appointed Master (LL33-38). 164Turning now to record the subjective factors, which are to be "instinctively synthesised" with the above-stated objective factors, they are, in this case, according to Mr Cox: (1)the very early admission of liability and formal plea of guilty, (2)the level of co-operation extended to the prosecutor by both defendants, (3)the defendants' expressions of contrition and remorse, (4)the payment of significant clean-up expenses, and (5)the owner's preparedness to pay the prosecutor's costs of both proceedings. 165The prosecutor's position on those subjective factors is: (1)The prosecutor would deny to the defendants the full Thomson/Houlton discount because, he submits, even an early plea of guilty to a strict liability offence does not always, and/or completely, avoid a trial of the length one might have expected in a mens rea situation (see [16] above). (2)and (3) The prosecutor finds of little relevance, the asserted assistance proffered by the defendants, but acknowledges that the early plea can also be an indicator of contrition and/or remorse. However, the prosecutor notes that, in this case, there is little other evidence of either, apart from brief remarks in the affidavits of the Master and Czech. There is, for example, no evidence that the owners subsequently modified the ship or its procedures to prevent a recurrence of such a spill, or to at least improve shipboard vigilance. As there was commercial advantage in effecting early repairs after the spill, the court has before it no compelling evidence that the defendants are unlikely to re-offend. (4)and (5) were noted, to the credit of the defendants, but no specific submissions were made in respect of them. 166The prosecutor rejects the defence submission, made (in par 117) in support of a s 10 order for the Master, that he is so entitled because he could have done "nothing further" to prevent the discharge and the resulting harm. The prosecutor submits that it is reasonable to expect the Master to have adopted what has become "ordinary practice", and to have ordered an inspection via the/a hatch (see T13.6.13, p8, LL25-35). Defence submissions 167Mr Nell's written submissions dealt with the following issues, in turn - environmental harm, the relevant sentencing considerations, the owner's submissions on liability and on penalty, and submissions made on behalf of the Master, including his application for a s 10 order. 168In terms of environmental harm: 169The defendants accept that, between 1030 and 1400 hours on 25 August, their ship pumped 72,000 litres of oil from its No 6 ballast tank into the waters of Newcastle port adjacent to Berth K4 (par 22). 170They acknowledge (in par 23) the evidence as to the spread of the discharge "over a large area" (T13.6.13, p15, L41), but especially in the area of berths K2, K3, K4, and K5 (Tp15, L36), with "some" oil on the other side of the river, opposite K4 and K5, "some further down that side of the river", "some down towards the entrance to the port", and some "travelling up the north arm" (pars 24-27, and Tp15, LL34-50). 171They do not "downplay ... a large quantity ... spread within the port", with "a varying range of contamination within different areas within the port, extending over ... a large area but not the whole of that large area" (T13.6.13, p16, LL7-8, and LL3-5). 172They acknowledge also that it took ten days to clean-up the "priority one" area, and five weeks (c.f. [162(4)] above) altogether, but that there would be "some residual harm thereafter", but not for an "extended" time (T13.6.13, p16, LL29-33). Two years after the event, the damaged areas had "largely recovered" and looked good (Tp17, LL1-3). 173The defendants acknowledge that the presence of HFO in the water is "likely to have some impact on organisms in the water", but there is no evidence of any such impact, its extent, its "lasting" character, or its significance (see par 34, T13.6.13, p16, LL22-27, and p17, LL5-12). 174Evidence of actual environmental harm, it is submitted, is confined to the effects of oil on the Spit, conceded by Mr Nell to be an ecologically significant area, albeit that the oil was confined to the southern end of the National Park on the east bank of the Hunter, and was present after the deployment by the prosecutor of a boom. That deployment occurred only after oil had passed through the entrance channel, into the lagoon (ASF 15, 19, 22, 23, and 27, Scanes p82, subs pars 37-38, and T13.6.13, p18, L13-p19, L5.). 175That harm consisted of (subs pars 39-46): (a)oil contamination of pelicans Approximately 40-50 pelicans were oiled, and 32 required intensive care and rehabilitation for up to two weeks. Migratory birds do not arrive in this area until October, and the clean-up avoided more serious outcomes (ASF 24 and 25, set out in [43] above). and (b)oil spotting of protected saltmarsh and mangrove vegetation Light oil spotting was observed on protected salt marshes and mangroves, necessitating their removal so as to minimise possible harm to the pelicans and migratory birds. The pruning of oiled foliage, as part of the clean-up, damaged the plants, but not the long-term health of the salt marsh, and there is no evidence of adverse impact on the mangroves (ASF 24-26 - in [43] above). and (c)contamination of invertebrate animals on mudflats (ASF 27) The only evidence of such an impact is the observation of oil on snails and in crab holes. Other "ground dwelling organisms" would have been removed/killed by the clean-up (Scanes par 71), and there is no more precise evidence of this harm, and no evidence of any substantial or long lasting impact. and (d)the production and disposal of oil contaminated waste (Scanes, par 76) The only evidence in respect of this is Scanes's observation of waste, and Mr Nell submits (pars 45-6): Whilst the fact that the impact of or harm caused by the discharge occurred in areas of ecological value meant that the harm was ecologically significant, there is nevertheless no evidence that the actual impact or harm was in fact significant or lasting. Indeed, according to Dr Scanes, the extent and duration of the harm was minimised as a consequence of the rapid action taken to clean up the oil. Oil persisted on the Stockton Sand Spit for 10 days. On low priority parts of the shoreline, it remained for up to 5 weeks. 176Finally, on harm, Mr Nell submitted (pars 47-8): Cpt Howes inspected the wetlands on 30 August 2010 and observed evidence of the discharge and cleaning that had been carried out and which was still in progress. At the time of his inspection, the amount of oil pollution was not extensive. Cpt Howes inspected the wetlands again on 21 August 2012, and found the foreshore to be pristine, the water to be clear, mangroves and foreshore flora healthy and abundant wild life. Had the discharge not been contained and cleaned up, it had the potential to have a greater impact on the environment, in particular in the respects identified in ASOF paras. 24 and 29. But no such actual harm occurred. The potential for this further harm was avoided by the clean up operation that was carried out, and the absence of the international migratory birds at that time. 177Addressing the sentencing considerations enumerated in relevant provisions of the CSP Act, Mr Nell relied on the following items of s 21A(3), in terms of mitigation (c.f. my list of items in [119] above): (a) the injury, emotional harm, loss or damage caused by the offence was not substantial, (b) the offence was not part of a planned or organised criminal activity, ... (e) the offender does not have any record (or any significant record) of previous convictions, (f) the offender was a person of good character, (g) the offender is unlikely to re-offend, ... (i) the remorse shown by the offender for the offence... ... (k) a plea of guilty by the offender (as provided by section 22), ... (m) assistance by the offender to law enforcement authorities (as provided by section 23). 178He also relied on the guilty pleas, and the earlier admission of liability, made well before the summonses were issued. 179He also addressed (subs par 57, and T13.6.13, p19, LL11-39) the question of how the court should approach the 2002 dramatic increase in the maximum statutory penalties for this offence. He submitted that the fact of such an increase "does not per se justify an automatic" multiplication of the penalties the court would have imposed for an offence "before the increases". He pointed the court to Cabonne (see [139] above), and, in particular, also to three marine pollution cases heard since 2002: Filipowski v Vopak Terminals Sydney Pty Ltd ("Vopak") [2006] NSWLEC 104, at [123]-[125]; Defence Maritime at [60], and Hemina at [16]. 180Mr Nell submits that (1) neither defendant had, prior to the spill incident, any warning or indication of the possible existence or development of the offending hole, or any reason for concern, such as would give rise to a need to open a hatch to check inside the No 6 tank, and (2) there is no evidence that they failed to sound it before de-ballasting on the 25th (T13.6.13, p24, LL13-22). If Mr Czech's theory or opinion is to be accepted, the rust-nib would suddenly "pop" out, leaving such a hole, which is not readily observable, even from inside the tank. 181There was no cause for inspection to be made prior to 23 August 2010, because: (1)the vessel was "in Class", having completed its five-yearly, very comprehensive Special Survey only in September 2009, and plate thicknesses were measured in June 2009, with diminution found to be well below the maximum allowable; (2)the annual Class Survey was conducted in Hong Kong on 1 June 2010, soon after the Master assumed command, and it revealed no cause for concern; and (3)the vessel's planned maintenance and inspection system includes routine inspection of all ballast tanks annually, although some companies inspect six-monthly. 182In regard to (3), Mr Nell submits (T13.6.13, p19, LL45-8) that there is no suggestion that the offending hole in the tank wall resulted from any lack of maintenance, and no evidence of any prior warning or indication of its existence. He also submits (pars 71-73) that the experts' agreement that a "highly prudent" Master or owner might check the ballast tank more frequently than annually is "not the appropriate test, either generally or for this vessel". 183Annual inspections were described in the expert evidence as "appropriate, usual and proper practice", and Mr Nell submits that they are "appropriately adequate" (T13.6.13, p20, L9). There was (LL23-6) "nothing to suggest ... either any more frequent inspections or ... an inspection on 23 August ... as a matter of or in accordance with good shipping practice". 184Greater frequency of inspections would depend on the condition of the tanks as surveyed, the circumstances of their use, and the likelihood of their being damaged. In the present case there were no grounds for such concern or suspicion. In any event, there had been an "extra" inspection on 27 February 2010, which reported nothing which would raise concern or suspicion. 185Magdalene was a little over 20 years old at the time of the discharge, but, while age and lack of use of the ballast tank are relevant factors to consider, in terms of what to expect of a highly prudent Master or owner, Mr Nell submits that age "is not of itself a factor ... that should call for more frequent inspections or ... an inspection any time you are going to use the ballast tank" (T13.6.13, p20, LL48-50). As the experts noted, the Master or owner "can order an inspection at any time they have concerns with a tank, such as the time since the tank was last used" (T13.6.13, p21, LL7-8). 186In all those circumstances, Mr Nell submits (par 76) that the failure to order an inspection prior to ballasting on 23 August 2010 was "not a failure to comply with proper practice". 187In his oral address, Mr Nell submitted (T13.6.13, p26, L5 to p27, L5) that the court should accept Quinlan's evidence that, although "clearly foreseeable where you have adjoining tanks", "the contamination of ballast water by fuel is a rare event ... and ... generally an unexpected event", and, therefore, although "one should take steps to avoid it", there is no necessity to adopt a "counsel of perfection ... whereby every time you operate a ballast tank, or operate a ballast tank where it hasn't been used for some unspecified period of time", the owners should instruct the crew to, or the Master should, routinely open the hatch to inspect the tank. All that is required is "compliance with the ordinary standards of practice or good practice". 188Neither owners nor crew were aware or suspicious of the presence of oil in the ballast tank, and there is no "evidence to suggest that they ought reasonably to have been aware of" it (T13.6.13, p23, LL17-18). The fitting and use of perforated sounding pipes are neither a Class requirement nor a statutory rule. 189As Quinlan opines, the air ventilator system is not designed for use to check the volume of the tank, and there is no evidence that it is normal or proper practice. There was nothing to raise concerns about the normal sounding system, or to raise any suspicion of contamination by oil. Mr Nell submits that there is no evidence that a manhole check should have been done in this case - even Michaels described it as a "last option" (see T13.6.13, p23, LL15-42). "The evidence ... doesn't suggest that that was either good practice or common accepted international practice" (T13.6.13, p23, LL45-6). 190On the question of watch-keeping, Mr Nell's written submissions accept the obligation on the crew to maintain a good watch, especially during cargo operations. The officer responsible for the de-ballasting (par 86) "will occasionally look over the side" to check the eductor system, but such a system can be left unattended, and in the present case it would initially discharge water. Mr Nell concedes, however (in par 87), the experts' view that "with a more vigilant watch, the discharge would have been detected earlier". 191In his oral submissions, he relied on Quinlan's comments that he would expect an officer to observe the commencement of the pump-out operation, and, "if it looks all right at the beginning", then go off to "his other duties", (T13.6.13, p12, LL36-7). The officer of the watch has other things to do (p14, LL7-9). In any event, there would be limited visibility over the port side (p14, LL23-30). 192In his oral closing submissions regarding the watch issue, Mr Nell noted (T13.6.13, p31, LL5-10) the prosecutor's submission that any failure in that respect should be visited upon the owner, and not the Master, whereas the failure to inspect can be blamed on both of them. He later returned to the question (p35, L35), and noted (LL41-4) that (my emphasis): There was a watch, your Honour will recall the record of interview records and also the joint expert report records that the second officer and third officers were the deck officers on watch, the joint expert describes them as qualified personnel. 193In terms of the adequacy of Magdalene's watch system, Mr Nell noted (Tp36, L41-p37, L15) that there may have been a lack of "express or explicit" commitment to the need for "good watch keeping" in the ship's operational procedures (there being no manual, or evidence of one, before the court), but also that there "would be no basis upon which [I] would find that there was no system to ensure that a watch was kept on the particular day". Mr Nell submitted that this adequacy question had to be considered in light of the uncertainty as to when the oil began to flow into the water during the relevant period. 194In his oral closing submissions, Mr Nell made the following additional comments on liability (T13.6.13, p37, L47 - p39, L5): Your Honour can't draw any findings particularly beyond reasonable doubt as to what is a proper system, what is the proper practice and whether in the circumstances that proper practice would have as is suggested resulted in discovery at an early stage and without that damage. ... ...the officer on the watch nonetheless has regard to the marine environment and if he sees something that's affecting the marine environment he would deal with it but what the experts say is we are surprised and if a more vigilant approach had been taken we would have expected it to be detected, not a proper system but a more vigilant and that's in our respectful submission along the same lines as the highly prudent master or ship owner. ... ...we don't accept that your Honour can make a finding that had either compliance with what Mr Michaels suggested is proper practice taken place it would have had that effect of discovering it at an earlier stage without significant environmental damage. ... ...the mere fact that we could have had an AB standing directly above the outlet watching the whole time which may have been a simple and cost effective thing is not a factor that ought be considered against the defendants in the same way as the inspection of the hole. 195Mr Nell's written submissions then deal with contrition (par 88), record (89), post-spill repairs and other actions (90-3), and clean-up (94), before dealing with the question of environmental harm (95-6, but see also earlier pars 34-48, and [168]-[176] above). 196In the next two paragraphs of his written submissions (pars 97 and 98), Mr Nell named 14 marine pollution cases. He referred (in 97) to four cases which he noted were dealt with under the regime of increased penalties applicable to the present matter. All of them were heard since 2006, and the sizes of the spills involved ranged from 5 to 124 litres. 197He went on (in par 98) to identify ten other cases, the discharges in which he described as in the "medium to upper ranges" of seriousness. In contrast to the scaling adopted by the prosecutor (see [162](1) above), Mr Nell's ten cases covered spills which involved volumes from 140 to 294,000 litres. 198While I will return to relevant cases, in the "consideration" section of this judgment ([205] below), I should note here that Mr Nell's written submissions do not identify the types of polluting liquid involved in the 14 cases to which he referred, and he draws no conclusions, for the court, from the two lists. However, in the ten cases (in par 98), dealt with between 1995 and 2005, and the volumes involved, in decreasing order, were 294,000 litres (D'Amato), then 3,343 litres (the second largest volume involved), 500 litres (in each of 2 cases), and 140-200 litres (in the other six matters in the list of ten). 199Mr Nell concedes (par 99) that Magdalene's is a "significant" spill, but he notes that it involved only 25% of the volume of oil in D'Amato. 200Mr Nell submits (par 101): (a) that the actual damage here is "no greater" than in D'Amato, (b) that the owners took adequate measures to guard against oil escaping into the ballast tank, and were not guilty of either negligence or conduct inferior to "proper practice", (c) that the discharge in the present circumstances was "rare and unexpected" ([187] above), and so (d) that the circumstances of this discharge "are no more culpable", and indeed are "less" culpable, than in D'Amato, rendering this (par 102) "a less serious and substantial offence". 201Turning to the relevant subjective considerations, Mr Nell submitted that the defendants' early admissions and early pleas had major "utilitarian benefits" in terms of the prosecutor's costs and expenses in proving the charge (par 103), and should attract the "discount of 35% to 40% usually afforded in recognition" of such factors. Discounts of 35% were found "appropriate" by Spigelman CJ in Thomson/Houlton (at [162], quoted in [125] above). In the present case, significant admissions were made very soon after the incident, and well before any proceedings were commenced (ASF 32-4). Mr Nell suggested, during his oral submissions (T13.6.13, p30, LL20-25), a discount "in the order of 35 to 50% including other exculpatory factors". 202On the question of contrition, Mr Nell rejected the prosecution suggestion that the contrition expressed by both Czech and the Master "should not be given perhaps its full effect for a number of reasons" including their failure to modify the sounding pipes or sounding procedures. He submitted that, as they took steps to "remedy the hole ... and ... make sure that the problem didn't happen again", their statements of contrition and remorse should be given "full effect" (T13.6.13, p24, L44-p25, L35). 203The early attention to conducting repairs in a "two stage process ... does not detract from" the defendants' desire to prevent a recurrence, even if there were other economic considerations involved (T13.6.13, p27, LL26-33). 204In terms of Mr Nell's submissions seeking a s 10 order in favour of the defendant Master, I note his reliance on: (1)the points he put in mitigation, on behalf of the owner (see, generally, [177]-[202] above); (2)the Master's: (a)assumption of command shortly prior to the ship's Annual Class Survey, (b)lack of direct involvement in, or direct responsibility for, the ship's cargo and de-ballasting operations at the time the discharge occurred, those functions being the responsibility of the Chief Officer (who has not here been charged), (c)appropriate reliance on other "duty officers" to maintain appropriate watch, (d)extensive cooperation with the prosecutor, and his general frankness at interview, (e)exemplary record 1989-2010, (f)expressions of regret and apology for the discharge and any resulting damage, (g)early admissions and plea, and (h)justifiable concern about the consequences of a conviction; (3)the failure of the prosecutor to identify anything he could have done to avoid either the leak or the discharge; and (4)the lack of any "public purpose" to be served by recording a conviction against him, or imposing a penalty on him, in addition to any admonition of, and any penalty imposed upon, the owners. Consideration D'Amato 205Parliament has always prescribed "strict liability", and "substantial penalties", for offences such as are charged in the present case, because, as Talbot J noted in D'Amato (at [94] and [103]), the sea must be "protected from pollution by oil from ships". 206The Marine Pollution Act 1987 originally prescribed penalties of $250,000 for corporate defendants, and $50,000 for individuals. They were increased fourfold to $1M and $200,000, respectively, in 1993, only six years later. Then, when the penalty unit was increased by 10% in 1995, they went up to $1.1M and $220,000. A ratio of 5:1 was maintained. Those 1995 penalties were in force when D'Amato was decided. 207Because D'Amato involved the most significant spill with which this court has dealt, I turn now to analyse it in more detail. 208The D'Amato spill occurred in Sydney Harbour on 3 August 1999, and involved 294,000 litres of heavy Murban crude oil. The owner, Master and Chief Officer pleaded guilty to charges brought under s 27 of the Marine Pollution Act 1987 (relevantly similar in terms to s 8, but concerning spills occurring during transfer/unloading operations). 209The ship in D'Amato was only eight years old. It was frequently inspected during 1999, before it sailed for Sydney, and its sea chest valves were checked on 29 July 1999. It berthed in Gore Bay on 3 August 1999. A safety check did not involve the valves. Discharge of cargo commenced at 1412 hrs, and the pumping rate was increased at 1650 hrs. A deck cadet was instructed to open two crossover valves "so that the sea suction line could be used as a crossover" ([36]). This was "not an unusual tanker practice" ([48]). 210A strong smell of hydrogen sulphide was detected at about 1825 hrs. Then an oil slick was detected, and pumping stopped, "some time between 1845 hrs and 1848 hrs" ([37]-[42]). The sea chest valves found to be open were then closed ([44]-[45]). There was no dispute that the huge escape of oil occurred through the port side sea chest valves ([47]). 211The court found that some normally expected precautionary measures were not taken, but original suspicions of sabotage were not made good ([49]-[52], and [58]-[62]). "The real explanation of how the sea chest valves were fixed in the open position remains a mystery" ([53]), but Talbot J accepted that ([63]): ... the spill occurred as a consequence of the failure to carry out proper and adequate tests of the sea chest valves before implementing the risky procedure of using the sea crossover pipe as a cargo crossover line during the unloading operation. 212Despite the prompt response to the incident, the oil ([64]) "spread across the waters of the Parramatta River, the Lane Cove River, the inner harbour and along the northern foreshore in the main harbour", and there were strong smells of gas and oil across a wide area of central and suburban Sydney ([65] and [72]), causing much disruption. A health alert regarding "irritation without long-term effects" was issued ([66]), but no specific health problems were reported ([73]). 213The smell was strong until about 10 pm, but no smell was reported next day ([67]). A "more serious incident", occasioned by "the explosive nature of the spillage", was avoided because of prevailing, favourable weather conditions ([68]-[69]), and, by 5 August 1999, "very little of the volatile fraction of the floating crude oil remained" ([74]). 214"Effectively all of the observable fauna of the mudflats and rocky foreshores in Balls Head Bay" died ([76]). Hydrocarbon sediments continued to affect rocky and mudflat areas until at least January 2000 ([77]), but those areas were still leaching oil at the time of hearing (March 2000 - [79]). Ten out of 16 birds, and one seahorse, which were treated for ill-effects, died ([81]). The long-term effects remained to be finally assessed at the date of judgment ([102]). 215His Honour concluded on the "harm" point (at [83]-[88]): 83. ... the environmental consequences of the incident were not significant in terms of the potential for widespread, short term and long term damage to the harbour waters and its foreshores. Congenial weather conditions averted what could have been a major catastrophe on the land. 84. ... the early deployment of booms around the scene effectively contained the majority of the product to the Gore Bay/Balls Head Bay area. 85. The high flashpoint of the crude oil released presented a significant catastrophic threat to the area of the spillage in the event that any source of fire, static electricity (mobile phones), spark or heat, including ferries/motorboats/vehicle exhausts had been present. Due to the magnitude of the released gas volume in a short space of time, the threat of explosion and the potential for disaster were extremely high, particularly as there were residential and commercial properties comprising real and significant heat sources and flame possibilities, situated very close to the spill area. 86. The potential for serious harm to the environment as a consequence of an oil spill is a real one. The prospect of a catastrophic effect is not to be discounted. The range of penalty indicates this. The significance of Sydney Harbour, in terms of visual and recreational amenity only serves to enliven an awareness of the importance of avoiding an oil spill during cargo handling operations. 87. The extent of actual harm caused is not to be measured solely by reference to the death or injury of living species. The spread of oil over such a large surface area of the harbour waters is inherently offensive. It remained over a number of days. There are long term consequences which are yet to be finally assessed. 88. Notwithstanding the relatively short duration of the impact of a pungent odour, it nevertheless was detected over a very wide area of the Sydney Metropolitan area and was sufficient to give rise to a multitude of complaints. The fact that no direct medical consequences for the health of individual persons have been reported is no more than fortuitous. 216Talbot J, after detailed consideration of the facts, concluded (at [99]) that the spill was not to be regarded as "the worst kind", and that the objective seriousness of the case called for "a penalty in the range of at least 50%", before consideration of mitigating factors, rather than the prosecutor's suggestion ([104]) of 75%, of the then statutory maximum ([105]-[106] - $1.1M at that time). The breaches in D'Amato were "not unforeseen", simple methods of prevention were available, and there was a negligent failure to adopt proper procedures, beyond the superficial tests which were carried out ([95]-[97]). 217His Honour went on to consider the mitigating factors relevant both to the offence generally, and to each defendant separately. 218As here, there were early pleas, a prompt response to the spill, admirable co-operation with the investigation and the hearing, expressions through counsel of "deep regret", no suggestions by the prosecutor of poor character or antecedents, payment of more than $4.5M for clean-up, and agreement to pay legal costs of more than $400,000. 219The Chief Officer was found to have had the "direct and immediate responsibility" for the operational decisions which led to the spill, but his failure to perform his functions "in a proper manner is therefore attributable to the owner as the ultimate employer" ([122]-[123]). His Honour referred in this regard to Tiger Nominees Pty Ltd v State Pollution Control Commission (1992) 25 NSWLR 715; 75 LGRA 71. 220The Chief Officer frankly acknowledged that the Master had no practical role in the relevant operations, and the Master confirmed that the management of the valves rested with the Chief Officer, although, as Master, "he was monitoring the activity on board at the time" ([129], [132], and [142]). 221On the other hand, his Honour commented (at [137]), in respect of the Master: ... the Captain of the ship is properly to be regarded as the direct and immediate representative of the owner while the ship is under his command. To punish the Master or Captain of the ship personally for an occurrence over which he had no personal control, except in a detached overall sense where the owner has already been punished on the basis of its vicarious responsibility and the person directly responsible will also be punished, would, in my opinion be an excessive and unreasonable punishment. 222Talbot J fined the owner $510,000, and the Chief Officer $110,000, but extended to the Master the benefit of the predecessor of s 10 (s 556A of the Crimes Act 1900). Spigelman CJ found (in Thorneloe) that the use of the s 556A/10 discretion in such cases is appropriate, but I note that the owner's fine in D'Amato was slightly less than 50% of the maximum (not "at least 50%" - [216] above). New penalties 223Following D'Amato there were several relevant government and parliamentary inquiries, and, in 2002, the Marine Pollution Act 1987 underwent what the Government described in Parliament as its "first major revision", which led to the major amendments, including substantial increases in penalties in cases where commercial vessels were involved - the maximum for a corporation went from $1.1M to $10M, and from $220,000 to $500,000 for individuals, increases which seriously altered the historic relativity between them (the ratio of 5:1 became 20:1). 224The Hansard record of the debate in the NSW Legislative Council on those amendments indicates (24 September 2002 at pp5128-5129) that the Second Reading Speech included the following comments: Marine and estuarine water quality is regarded as one of the most serious issues in Australia's marine and coastal environments and water quality generally ... ... The increases are significant but so is the potential impact on the environment that the penalties are intended to address. Oil pollution incidents represent a serious threat to the quality of New South Wales waters. Honourable members need only recall the spill of 300,000 litres of oil from the Laura D'Amato into Sydney Harbour on 3 August 1999 to realise the damage that a large spill of oil can cause. The environmental, commercial and public use significance of Sydney Harbour and other New South Wales coastal estuaries along with coastline and coastal waters requires owners and masters of vessels using these waters to exercise extreme care in full knowledge that failure to do so could have severe consequences on their operations. The current levels of fines are insufficient to have a deterrent effect on oil polluters. It must be remembered that the penalties are maximum ones and the courts have discretion on the penalty actually imposed. Only in the most serious of cases would the penalty approach the maximum amount. ... Even if the courts impose the maximum fine for a corporation, that penalty is relatively small when compared to the average value of a commercial vessel visiting New South Wales waters. ... Increased maximum penalties for improper discharge for corporations that represent over 10 per cent of the value of the average oil tanker and its cargo would provide a more appropriate incentive for compliance with the Marine Pollution Act than the current penalty does. The proposed increases to penalties for improper discharges for individuals and offences in relation to the failure or delay in reporting incidents or failure to co-operate will also provide more appropriate incentives for compliance with the Marine Pollution Act by shipowners and their crews. 225Other amendments dealt with (1) the perceived impacts of the decisions of this court and the CCA in Morrison v Peacock ([10] above), in which an appeal was then awaiting judgment in the High Court, regarding the possible use of "wear and tear" as a defence, and (2) the importance of ships having in place insurance to cover the consequences of spills. 226The amending legislation was passed without opposition, and came into force on 1 November 2002. Accordingly, the greatly increased penalty regime had been in place for almost eight full years when the Magdalene spill occurred. Subsequent cases 227As I have already noted ([196] above), Mr Nell took the court, in his written submissions (par 97 c.f. 98), to four post-2006 marine pollution decisions of the court which applied the increased penalties. They were Vopak (40 litres), Defence Maritime (5-16 litres), Filipowski Barbara v Magnavia Schiffahrtsgesellschaft MBH & Co Kommanditgesellschaft, Pablo Dion and Suzanic Branco ("Magnavia") [2007] NSWLEC 404 (30-40 litres), and Hemina (103-124 litres), to three of which I have earlier referred ([179]), in the context of increases in penalties. 228Hemina involved the highest spill volume of the four (103-124 litres), but that volume is far less than is involved here (72,000 litres). Nonetheless, it has some relevance to my consideration of the present case, because that ship (the Carla) was more than 20 years old, and it was common ground that the spill was caused by a "fatigue crack" in the hull plating of a fuel tank. 229Pain J was not satisfied that the Master or the ship's Agent acted negligently or recklessly ([110]), but was satisfied ([135]) that "the owner should have undertaken more maintenance to check hull thickness around fuel tanks such as the No 4 starboard fuel oil tank, given the Carla's age and length of service". Her Honour found objective seriousness in the "low to medium range" ([141]), and arrived at a fine of $150,000 for the owner ([173]), but gave the Master a s 10 order with a two year good behaviour bond ([153]). 230Her Honour contrasted the facts in Hemina with those in the "more serious" case, Filipowski v Mediterranean Shipping Company SA ("Mediterranean") [2005] NSWLEC 159, in which oil leaked through a corroded seam into ballast water. Bignold J found that the subject 27 year old ship had an actual history of poor maintenance, and had been detained on several occasions, indicating that "greater vigilance and care" was required in its "ordinary operation". (See Hemina at [136] and [170]). 231Her Honour also assessed the utilitarian value of the defendants' pleas of guilty in Hemina at only 20%, because of the serious factual contests which prolonged the trial ([161]-[166]), and noted ([168]) that the owner had expressed no contrition or remorse. Magdalene 232In the present case, the prosecutor has fairly conceded that Magdalene, although 20 years old, has been well maintained and has no record of detentions. The causes of the spill were clearly and accurately identified by the prosecutor ([162](2) and [163]), and the actual harm caused was identified by both counsel (in the ASF, summarized at [36]-[44], and also at [162](3) and [175]-[176]). 233In arriving at its sentence, the court must pay close attention to the legislature's decision on the current maximum penalty for a particular offence, and seek guidance from comparable cases, or from the "range" of penalties imposed in all relevant cases, as each involves consideration of some "scale" of objective seriousness. 234As if to express how difficult that task always is - but in the context of the facts and prescribed penalties in the particular case then before him - Stein J tried to formulate a general range/scale in Environment Protection Authority v Orange City Council ("Orange Council") [1995] NSWLEC 103. ... What one means by the "lower end of the range" or the "higher end of the range" is problematic. These expressions are quite frequently used in pleas and also to some extent by Judges in decisions. I have given some thought to what between nought and $125,000 (the maximum penalty which may be imposed on a corporation for a tier two offence) may be regarded as within these words. For what it is worth, I have concluded as follows: The lowest end of the range should be seen as between 0 and 10%, which translates in dollars to between 0 and $12,500. The highest end of the range may be seen as between 80 and 100%, that is between $100,000 and $125,000. Between these ranges, lowest to highest, there might be seen to be a mid-range of penalty available. This perhaps would include between say 30 to 60% or between $36,500 and $62,500. ... [T]his leaves, in between, two other zones or areas. One would be between 60 and 80%, which I suppose could be termed, for want of a better word, mid to high. The other, from the lowest to the mid-range of between 10 and 30%. If I am carefully examining all the circumstances surrounding this offence, including the matters properly put in mitigation, I conclude that I cannot properly regard it as in the lowest end of the scale that I have just described. Rather, it would fall a little further up the range, in the low to mid range, ie, between 10 and 30%. When I examine the range of translated dollar penalties in this area, I conclude bearing in mind all of the circumstances laid before the Court in the evidence, that 20% is the appropriate fine to impose. ... 235On the "scale" in the prosecutor's submission in the present matter ([162] (1) above), the Hemina spill would be in the "smaller medium" range, whereas the other three spills in his list ([226] - (Vopak, Magnavia, and Defence Maritime) would be "small", and D'Amato and the present spill "big" ([162](1) - see also [197]-[198] above). 236Mr Nell conceded (par 99) that the Magdalene spill (72,000 litres) was "significant", and, in his oral submissions (T13.6.13, p19, LL27-28), he appeared to concede that it was in the "upper medium" range, rather than the "more serious ... or ... upper range", for which the prosecutor was contending. 237The sheer enormity of this spill, and its consequences, are patently clear in the eye-witness accounts and the photographic/map evidence before the court (e.g. Exhibit P3). It is, however, certainly not a "catastrophic" spill, such as might attract the maximum penalty, nor such a "big" spill as to be truly comparable with that in D'Amato, but it is clearly the second most serious spill known to this court, and, clearly, significantly worse than Hemina, Mediterranean, and the other "medium' spill cases I have reviewed above. I agree with Mr Cox that this spill is properly characterised as "big", rather than as upper "medium [but] significant", as Mr Nell submitted. If Talbot J considered D'Amato a 50% case, Mr Nell submitted that Magdalene is "nowhere" near that seriousness (T13.6.13, pp28-29). 238In terms of "evenhandedness" ([138] above), there is no case truly comparable, other than D'Amato, which caused many more concerns than Magdalene. The spread of oil following the Magdalene incident was not as severe; it did not create any serious odour problem; it did not kill as much vegetation; and it created no public health or explosion risks, such as occurred in D'Amato. 239The adverse environmental consequences of the present spill had essentially disappeared within less than two months, whereas in D'Amato the affected area was wider, the immediate harm continued for more than five months, and the long term effects could not be finally assessed at the time the charges came before the court (see [212] to [214] above). 240In this case, as in D'Amato, weather conditions played a part (see [41] and [162](6) above), and in D'Amato there was demonstrable human negligence whereas none is alleged here. The possibility of the potential harm created was not realised, and it was equally fortuitous for the defendants that in this matter the clean-up was completed before the expected date of arrival on the Spit of the annual bird migration. Nonetheless there was huge potential for harm to occur during the clean-up period (25 August - 8 October). 241In the present matter the court is not bound to accept Talbot J's conclusion that the objective seriousness of the D'Amato spill represented only 50% of the most serious case, and I will not speculate as to what level of fine his Honour would have imposed had he dealt with that case under the post-2002 penalty regime (see [179] above, and c.f. Mr Nell at T13.6.13, p19, LL28-39). 242Mr Nell commented early in his oral closing submissions (T13.6.13, p9, LL35-43): One doesn't necessarily mathematically calculate by reference to quantity ... but evenhandedness does suggest that ... you would look at 79,000 (sic - 72,000) weighing it up within that range between zero and 50%, [which] ... comes to ... approximately 12 and a half percent. 243With respect, that approach is both incorrect and too simplistic. 12.5% may well prove to be a valid assessment of seriousness, in the final anlaysis, but it is not to be arrived at in that way. 244As Giles JA said, in Cabonne (at [37], quoted above in [139]): ...the increase can readily be recognised as operating as a deterrent to wilful disregard of statutory obligations. It remains necessary to address the facts of the particular case, with due regard to the current maximum penalty and the seriousness of the offence and to the need for deterrence thereby indicated together with all other relevant matters. 245It must also be remembered that: (1)deterrence of owners was a clear legislative objective of the multiplication of their maximum penalty by a factor of nine, while the individuals' maximum went up by a factor of only 2.25 ([223]-[224] above); and (2)the 2002 penalty regime was well-entrenched, by both passage of time, and its regular application by this court, before either this incident or this hearing occurred ([225] above). 246Stein J's scale of seriousness (Orange Council - [234] above) can be summarised as: 0-10% "lowest" 10-30% "low to mid" 30-60% "mid-range" 60-80% "mid to high" 80-100% "highest 247Mr Cox ([162](1)) also had five categories, which I interpreted, in terms of oil spill volumes, as: "small" up to 50 litres "small medium" 100-200 litres "large medium" 500-1000 litres "big" More than 1000 litres "catastrophic" Exxon Valdez 248The two scales are difficult to reconcile, and Mr Cox's is of limited assistance. 249Assessing the charged offence from the maximum penalty downwards ([162](2)), I have concluded that, before consideration of any statutory aggravating or mitigating factors, this incident should be assessed at somewhere near, but certainly not more than, 20% of the theoretical "worst case", at the midpoint of Stein J's "low to mid" range, which would suggest a fine in the order of $1.8M. Aggravating and Mitigating Factors 250Section 21A of the CSP Act lists various aggravating and mitigating factors on sentence ([119] and [177] above). 251As already noted ([135] above), facts adverse to the defendant must be proved beyond reasonable doubt and those favourable to the defendant need be proved only on the balance of probabilities. The absence of any mitigating factors proven in favour of the defendant is not an aggravating factor against the defendant. 252Both lists of factors include "harm", and in this case it is clearly the only aggravating factor. 253The harm caused by this spill was substantial and significant, but, fortunately, neither long-lasting, nor permanent. It cannot be accepted as a mitigating factor. 254Clearly, in terms of the relevant s 21A mitigating factors: (1)this offence is not part of any planned or organised criminal activity; (2)neither defendant is known to have any criminal record; (3)neither defendant has seen its/his character questioned; and (4)both have good prospects of rehabilitation. 255I am also not satisfied that, on what has been put before the court, either defendant can be regarded as likely to reoffend (c.f. Mr Cox at T13.6.13, p7, L46-p8, L17). 256Of the five mitigating factors recognised by Mr Cox (at [164] above), numbers 4 and 5, namely the defendant owner's payment of the clean-up costs, and its preparedness to pay the legal costs of both defendants, require no discussion at this point, but they operate to the credit of both defendants. 257I turn, therefore, to consider the other three, namely (1) the pleas of guilty, (2) cooperation and assistance, and (3) contrition and remorse, all three of which are specified in s 21A. 258I will then consider to what extent they, singly or in combination, might lead to a discount on the indicative penalty I have just stated ([249] above). Pleas of Guilty (Cox Factor (1)) 259I respectfully find rather nebulous the prosecution argument, for which no authority was advanced, that the utilitarian value of the defendants' pleas should be reduced in the circumstances of this case. I will apply, in full, the principles so clearly stated in Thomson/Houlton (and quoted in [125] above). Those principles set a maximum "guilty discount" of 25%. 260Despite the early admissions, which were made well before the summons was issued, it remained necessary for the prosecution to prepare very substantial material in order to secure, on 30 May 2012, this court's order that a summons be issued. 261The agreement on the ASF, and the very limited amount of oral evidence that was needed, including absolutely none from the prosecution's witnesses of fact, and none from either Czech or the Master, represent substantial utilitarian value to the court's resources. 262The Thomson/Houlton principles clearly require me, in all the circumstances, to allow the defendants the full maximum 25% discount for their pleas. Cooperation and Assistance (Cox Factor (2)) 263There was little argument between counsel about this consideration. 264Clearly substantial credit is due (a) to the owner for its formal admission of liability within three months, well before the commencement of proceedings, (b) to the Master for the admissions made on his behalf in that 10 December 2010 letter, and (c) to both defendants for the preparedness of the Master (and his crew) to participate, subject to the limitations of entirely appropriate legal advice, in the prosecution's investigation. 265Only a modest discount should, however, follow on these grounds, as ss 10, 50 and 53 of the Marine Pollution Act 1987 impose very strict obligations on ship owners and crew in respect of frankness and cooperation, and prescribe serious penalties for their breach. Contrition and Remorse (Cox Factor (3)) 266Unlike Preston J in Rawson, I do not consider such sentiments to be absent in this case, and I will apply the principles in Waste Recycling ([133] above). 267There was here not just "smooth apologies" from counsel ([203] in [133]). Contrition is demonstrated in the affidavits of Czech and the Master (albeit without their personal attendance at court - [214] in [133]). Also, there was "speed and efficiency of action to rectify any harm [and] ... action to prevent further pollution ... and address the causes of the offence" ([204], [205] and [212] in [133]). 268The qualifications imposed by the CSP Act on s 21A(3)(i) ([119] above) does not mitigate any allowance which the court might make in this case for remorse, and I find genuine contrition on the part of both defendants. More discount than 25%? 269There are more mitigating factors to consider on sentencing than there are factors for which specific discounts have been defined in the authorities. There is really only the Thomson/Houlton discount for a guilty plea which finds clear definition (10-25%), but the cases recognise that undefined percentages will be added to the guilty discount to take account of those mitigating factors discussed above, or any other exculpatory factor which may be established (T13.6.13, p30). 270One of the discount principles stated in Borkowski (see [32](5), quoted in [128] above) provides, for example, that there should be no separate discount for remorse. 271"Total" discounts of 30 to 35%, and occasionally more, are not uncommon in environmental prosecutions; see, e.g., Environment Protection Authority v Big River Group Pty Ltd [2011] NSWLEC 80 (33%), Environment Protection Authority v Boral Australian Gypsum Ltd [2009] NSWLEC 26 (35%), and Environment Protection Authority v Ravensworth Operations Pty Ltd [2012] NSWLEC 222 ($30,000 off $80,000). 272In marine pollution cases, Lloyd J allowed a total discount of 35% (rounded down to one-third) in Filipowski v Schiffsbeteiligungsges m.b.H. & Co KG; Filipowski v Kleemann ("Kleemann") [2004] NSWLEC 207, (2004) 134 LGERA 48, at [32], and discounts of 40% were allowed by Bignold J in both Vopak and Mediterranean. 273In his final submissions, Mr Nell urged on the court a possible 50% combined/total discount for all mitigating considerations ([201]). 274In a drug-related CCA case, SZ v The Queen (to which Preston J referred in Rawson at [46] - quoted above in [131]) total discounts as high as 50% (and sometimes above) were discussed by Buddin and Howie JJ, at some length. 275Buddin J delivered the primary judgment on the appeal, but Howie J, in concurring with him, added some comments of his own on "combined discounts". The presiding judge, Simpson J, specifically agreed with both of them, and, at some risk to brevity, I wish to quote some comments from both judgments. 276Howie J said (at [3]-[11]): 3 ... I do not recant from my view that in general a combined discount for pleas of guilty and assistance should be given and that such a discount should not normally exceed 50 per cent. 4 ... there still is ...a bottom line beneath which a sentence cannot legitimately be set. If that bottom line is not respected, the sentence will fail to carry out the purposes of punishment. ... 5 ... whatever be the subjective circumstances of the offender and whatever discounts are applied to achieve a recognised public policy, the sentence must bear a reasonable relationship with the objective seriousness of the offence and fulfil the manifold purposes of punishment: ... the sentencing judge is required to stand back and ask whether the resulting sentence is just and reasonable, not only to the offender but also to the community at large. 6 ... because there is only limited room to discount a sentence without going below the bottom line, it must follow that the application of one discount for one purpose will inevitably impact upon the extent to which another discount can be applied to achieve a different purpose. The extent to which a sentence is discounted in recognition of the utilitarian value of the plea must necessarily affect the ability of the court to discount the sentence in recognition of assistance and the consequences of it for the offender. ... 7 Counsel for the applicant argued...appropriate case to discount a sentence by up to 75 per cent. ... it is impossible to see how a sentence that is only 25 per cent of what would otherwise be appropriate could not be "unreasonably disproportionate to the nature and circumstances of the offence". 8 ... the primary task of imposing a sentence that reflects the objective circumstances of the offence... 9 ... if an Ellis discount is allowed for disclosing unknown criminality in addition to a discount for an early plea, the ability to give any further discount for whatever purpose is reduced. 10 ... There is still on offer, even after an early plea, a discount of somewhere in the vicinity of 25 per cent, or more in an exceptional case. The simple fact is that it is more important to the administration of justice to encourage and reward early pleas of guilty. If the pursuit of that policy diminishes the ability to encourage and reward assistance, so be it. There is a greater public policy at stake and that is public confidence in the courts to impose sentences that are just and reasonable to all concerned. 11 In my opinion the application of two discrete discounts, as was done in the present case, is liable to lead to error unless the court is conscious of the overall discount being given and considers whether a discount of that degree can result in a sentence that does not infringe s 23(3). ... 277Buddin J said (at [42]-]54]): 42 The applicant was entitled to a discount, in addition to a discount for his pleas of guilty, for his assistance to the authorities ... 46 In R v Sukkar [2006] NSWCCA 92, Latham J (with whom McClellan CJ at CL and Howie J agreed) said ([pars 54, 46]): ... While there is no fixed tariff for assistance to the authorities, discounts customarily ranged between 20 percent and 50 percent. There have been comparatively rare cases where a discount in the order of 55 percent or 60 percent has been given. Generally speaking however, a discount of 50 percent is regarded as appropriate to assistance of a very high order. No doubt, that is in part a reflection of the principle that a discount for assistance must not produce a result which is disproportionate to the objective gravity of a particular offence and the circumstances of a particular offender. ... Bearing these considerations firmly in mind, I regard a discount of 45 percent as excessive in the circumstances of this case. The respondent's assistance could not, in my view, be characterised as assistance of a very high order. ...I consider that a composite discount of 35 percent would have been appropriate to the recognition of both the respondent's plea of guilty and his assistance to the authorities, such as it was... 47 Howie J made the following additional observations [par 5]: ... In my opinion discounts for a plea and assistance of more than 40 per cent should be very exceptionally, if at all, granted in a case where there is no evidence that the offender will spend the sentence, or a substantial part of it, in more onerous conditions than the general prison population. ... ... 50 ...In Regina v Gallagher (1991) 23 NSWLR 220 at 232 - well before s 23(3) was enacted - Gleeson CJ ... said: Public confidence in the administration of criminal justice would be diminished if courts were to give uncritical assent to arguments for leniency, which are being jointly urged by both the prosecution and the defence, in circumstances which may call for a close examination of the alleged assistance. Care must also be taken to ensure that the ultimate sentencing result that is produced is not one that is so far out of touch with the circumstances of the particular offence and the particular offender that, even understood in the light of the considerations of policy which supports [the discounts given], it constitutes an affront to community standards. If sentencing principles are capable of producing an outcome of that kind, then that calls into question their legitimacy. ... 52 I acknowledge, as did Latham J in Sukkar (supra), that there will be cases in which a combined or composite discount of more than 50% is called for. There may well be a case in which the assistance proffered is of a quite extraordinary kind. Alternatively there may be a case in which the offender is entitled to an additional discount, in accordance with the principles enunciated in R v Ellis..., on account of having disclosed information which was otherwise unknown to the authorities. Indeed, composite discounts in excess of 50% have been allowed on several occasions when this Court has proceeded to re-sentence following a successful appeal by an offender. ... 53 However, in light of the authorities to which I have referred and particularly given the statutory mandate contained in s 23(3) of the Act, it is my opinion that a combined discount exceeding 50% should be reserved for an exceptional case. ... 54 ... I have concluded that the discount which the sentencing judge allowed was unduly favourable to the applicant. 278I have now reviewed the sentencing remarks of the judges in many cases, and am prepared to allow a total discount of one-third in this case, for the pleas, co-operation, remorse, the pre-trial payment of $1.7M for clean -up, and the commitment to pay costs. 279In the case of the owner (12/50522), that would bring me to a fine of $1.8M, reduced by $600,000 to $1.2M. The Master 280I turn now to consider the position of the Master (12/50523). 281The history of marine pollution prosecutions shows a trend towards mostly blaming the owner, because in the majority of incidents there is management failure. 282One major exception was Filipowski v Bak and Anor [2004] NSWLEC 498, where Cowdroy J found ([56]) the Master "more culpable than the owner because of his acknowledged neglect", and fined him more than double the amount of fine imposed on the owner, despite the 5:1 ratio of the maximums. His Honour also made separate costs orders against them. 283At risk of repetition, I need to review some relevant marine pollution decisions, from the Master's viewpoint. 284In many cases all defendants charged have been punished, e.g. Morrison v Che Mat and others (1997) 95 LGERA 212, where I fined the owner $50,000, the Master $10,000, and the Chief Officer $1,000, having found no grounds for extending to any of them the benefits of what was then s 556A of the Crimes Act 1900. In that case the real underlying failure was lack of education/instruction of the crew, by owner and Master. That failure seriously disadvantaged the Chief Officer, hence the much lower fine I imposed on him. 285In Filipowski v Lyndon and ADI [2001] NSWLEC139, McEwen AJ refused to make a discharge order under s 10 against an apprentice who made a mistake. His Honour fined the owner $100,000 plus costs, and put Mr Lyndon on a one-year good behaviour bond (under s 10(1)(b) and (2)), with no order as to costs. 286In Thorneloe, the CCA granted a s 10 order where the trial judge (Talbot J) had refused one. The Chief Justice noted, however, that s 10 orders are rarely appropriate for environmental offences ([165], quoted in [151] above). The CCA also allowed his Honour's adverse costs order to stand. 287In Webb v Chung & Ors [2002] NSWLEC 135, a "latent defect" case, Cowdroy J granted s 10 orders to both the Master and the Chief Engineer, but ordered them to pay costs. The discharge was minimal, so the owner was fined only $35,000 plus costs. 288In the penultimate chapter of the Morrison v Peacock litigation, which involved a small spill into a lagoon at Lord Howe Island, the defendants pleaded guilty when their proceedings were remitted by the High Court, and Pearlman J granted both of them s 10 orders, with no orders as to costs: Morrison v Peacock and Roslyndale Shipping Co Pty Ltd [2003] NSWLEC 68. 289The prosecutor, in the final chapter of the case, appealed to the CCA, and her Honour's decisions on both s 10 and costs were allowed to stand, as being "within the range of permissible sentences" (on the s 10), and not within the CCA's appeal jurisdiction (on the costs issue): Director of Public Prosecutions (NSW) v Roslyndale Shipping Pty Ltd [2003] NSWCCA 356. 290In Kleemann, Lloyd J considered Thorneloe, and (at [39]-[40]) the question of "what the defendant could, as a matter of practical reality, have done to avert the event that had occurred", and his Honour concluded: 40 In applying the principles explained in Thorneloe, I have regard to the absence of any evidence of the actual environmental harm, the absence of any personal fault on the part of the Master, the fact that it was the Chief Engineer who was in charge of the bunkering operation, the Master's hitherto impeccable record after forty five years of seagoing experience, including some twenty nine years as a Master, the fact that matter was well under control until the monsoon type rain arrived, and the Master's expression of regret over the incident. The fact that the Master is now retired from service means that considerations of deterrence do not arise. In these circumstances it is appropriate to exercise the discretion under s 10(1)(a) of Sentencing Act in favour of the Master. 291In so doing, his Honour said (at [39]): "one does not look for a standard of virtual perfection". 292In Mediterranean, Bignold J noted that the ship had a poor record, and was "very old" ([74] and [81](i) of his Honour's judgment, and [103] above). That age reasonably required "greater vigilance and care" in the ship's ordinary operations. It was "broken up" in February 2002 (ASF 27 in [10]). His Honour said: 83 My evaluation of the totality of relevant evidence leads me to conclude that chief culpability for the oil spill must be laid at the feet of the ship owner, but that neither the Master nor the Third Mate has been shown to be not culpable, albeit to a lesser extent, than my evaluation of the ship owner's culpability. 84 It is relevant to note that the Master and the third Mate were only very briefly associated with the "Viviana" prior to the oil spill incident. 85 This is an unfortunate association, especially in the light of their unblemished records at sea, especially so in the case of the Master who has been as sea for some 40 years. This fact is mitigating of their culpability but It does not absolve them. 86 The application made on behalf of the Master for discharge without conviction pursuant to the Crimes Sentencing Procedure Act 1999, s 10 in my opinion has not been substantiated. Although the Master's "character, antecedents, age" (vide s 10(3)(a)) operate clearly in his favour, I do not find the offence to be "trivial in nature" (vide s 10(3)(b)) and I do not find the "circumstances to be extenuating" (vide s 10(3)(c)). 87 In my judgment, the objective facts of the offence, together with the nature and degree of the culpability of each Defendant justifies the recording of a conviction and the imposition of a penalty commensurate with my evaluation of the relevant objective/subjective factors relevant to the offences. ... 89 There are, of course, mitigating factors operating in favour of each Defendant, namely- (i) the early plea of guilty; (ii) the contrition and regret of each Defendant; (iii) the first environmental offence of each Defendant; and the exemplary seafaring record of each Defendant. 90 These taken collectively justify a significant global reduction of sentence for each Defendant in the order of 40 percent. 293His Honour fined the owner $150,000, the Captain $25,000, and the Third Mate $15,000, all plus costs. 294In Vopak, Bignold J again both refused a s 10 order, and allowed, as I have earlier noted, a 40% discount. 295For completeness, I again draw attention here to the outcome in D'Amato ([221] above), where a s 10 order was made, despite the subject event being anything but "trivial". 296I also again note the presence of some aggravating factors in Hemina, where the s 10(1)(b) discretion was exercised in favour of the Master (a two-year good behaviour bond). 297Contamination of ballast is rare, but not unknown; it is clearly foreseeable, and more likely in "old" ships, which are more likely, after 20 years service, and despite good maintenance and good surveys, to develop corrosion and a "rust nib", which, ex post facto, was the opinion of the owner's representative, Czech, whose company has 100 years management experience in the industry, as to what occurred in this case ([54]). 298 Hemina was a case of hull fracture, and it is pertinent to note Pain J's comment, in respect of management's role (at [134]): ... that additional maintenance is necessary for older ships is demonstrated by the hull fracture on the Carla. Relying on the absence of an incident to suggest that there is no problem with the hull is not sufficiently preventative for a prudent owner. The potential for hull stress in and around fuel tanks as identified by Mr Burge's evidence means that class surveys which provide for a dry dock inspection every five years are not necessarily sufficient. A prudent owner needs to deal with hull maintenance more proactively. 299Such matters are more the province of owners, rather than Masters, and the offence in this case is more a system or command failure anyway. 300The Master was new to the vessel, and we know nothing of his experience in leadership roles in ships of its age. He provided no detail of his service in previous ships, but he had been a Master only since 2004, and the prosecutor brought forward no evidence that supported any submission that the court could find that "he should have known better". 301He joined Magdalene just as she underwent a major survey. He may well have felt entitled to rely on that for not inspecting the tank before ballasting it on the 23rd August. 302His major contribution to the incident on the 25th August is said to be his failure to properly test the tank for contamination, but the ship had no established procedures requiring it, and initiating it, without a clear indication that it was necessary, (1) goes beyond the experts' baseline positions, (2) would approach Lloyd J's "standard of virtual perfection", and (3) could not form the basis of a finding of negligence on the part of a master, who does not necessarily have to have the credential "highly prudent". 303On the other hand, in simple terms, a 10-20 minute job removing a hatch before commencing de-ballasting would have released the strong smell of HFO, and ensured the discovery by the crew of the contamination of the No 6 tank. 304As Mr Nell observed (T13.6.13, p32, LL37-40): ...one could think of as a counsel of perfection any number of things that could be done. ... section 10 doesn't require the identification - doesn't require the removal of every possibility in order to get the benefit of it. One has to look at what he could reasonably have done. 305That brings me to the question of watch-keeping on such a ship at the time of such operations as de-ballasting, and loading cargo. 306It was not part of the Master's duties to take personal charge of the port operation of the ship. I believe that he was entitled to rely on the "qualified personnel" ([192] above), among his senior officers, to do better. 307Their failures in this regard are more the vicarious responsibility of the owner, than of the Master. Likewise, the need for perforated sounding pipes, or procedures to compensate for their absence, while matters perhaps of recommendation by a Master to the owner, is really a matter for owners. 308A decision to make a s 10 order in the defendant Master's favour in this case is not free from difficulty or doubt, but, on the approach I have observed in the cases surveyed above, I am prepared, on balance, to accept Mr Nell's submissions ([204]) and do so. Costs 309The corporate defendant has undertaken ([20]) to pay the prosecutor's costs of both matters, but the court was not notified of any agreement on, or estimate of, the amount. Orders 310The orders of the Court will, therefore, be: In Matter No 12/50522 (1)The Court finds the offence proved. (2)The defendant is convicted of the charge set out in the summons. (3)The defendant is fined the sum of $1.2 million. In Matter No 12/50523 (4)The Court finds the offence proved. (5)Pursuant to s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999, I direct that no conviction be recorded, and that the proceedings be dismissed. In Matters Nos 12/50522 - 50523 (6)The defendant MS Magdalene Schiffahrtsgesellschaft MBH is ordered to pay the prosecutor's costs of both proceedings on a party-party basis, as agreed or assessed, and to pay the prosecutor's reasonable investigation expenses. (7)With the exception of Exhibit P1, all exhibits may be returned. 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: 20 May 2020