Filipowski v Terminals Pty Ltd and Ethell [1999] NSWLEC 161

Filipowski v Terminals Pty Ltd and Ethell [1999] NSWLEC 161

The appropriate penalties must take into account the control and condition of the apparatus from which the discharge occurred, the quantity and hazardous nature of the substance, lack of actual environmental harm, remedial actions, defendants' records, pleas of guilty, and preventative steps taken post-incident. There is no basis for the application of s 556A to dismiss the charges without conviction, as there are no extenuating circumstances or precedent for such application to a corporation in environmental cases. The defendants’ responsibility is not displaced by the role of the dump valve, as the statutory deeming provision ensures liability where discharge ultimately enters State...

Parties
Prosecutor: Barbara Filipowski; Defendant: Terminals Pty Ltd; Defendant: Gerard Ethell
Jurisdiction
Australia
Judgment Date
14 July 1999
Procedural Posture
Criminal Prosecution / Sentencing After Guilty Pleas
Outcome
Conviction and penalty; opportunity for parties to address costs pending.
Legal Topics
Marine Pollution, Criminal Penalties, Mitigation of Penalty
Environmental Law Marine Pollution Criminal Penalties Mitigation of Penalty

Case Brief

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Parties

Barbara Filipowski

Prosecutor

Terminals Pty Ltd

Defendant

Gerard Ethell

Defendant

Procedural Posture

Criminal Prosecution / Sentencing After Guilty Pleas

Legal Issues

  1. 1 What is the appropriate penalty for offences under s 27(1) and s 28(1) of the Marine Pollution Act 1987 arising from a discharge of nonyl phenol into Port Botany?
  2. 2 Are there mitigating factors affecting the sentences for Terminals Pty Ltd and Mr Ethell?
  3. 3 Is section 556A of the Crimes Act 1900 applicable to dismiss the charges without conviction?

Ratio Decidendi

The appropriate penalties must take into account the control and condition of the apparatus from which the discharge occurred, the quantity and hazardous nature of the substance, lack of actual environmental harm, remedial actions, defendants' records, pleas of guilty, and preventative steps taken post-incident. There is no basis for the application of s 556A to dismiss the charges without conviction, as there are no extenuating circumstances or precedent for such application to a corporation in environmental cases. The defendants’ responsibility is not displaced by the role of the dump valve, as the statutory deeming provision ensures liability where discharge ultimately enters State...

Court Disposition

Conviction and penalty; opportunity for parties to address costs pending.

Orders

  • Terminals Pty Ltd convicted under s 27(1) and fined $30,000.
  • Mr Ethell convicted under s 27(1) and fined $7,000.