CFT Investments 1 LLC v Commonwealth Director of Public Prosecutions [2022] QDC 145

DISTRICT COURT OF QUEENSLAND CITATION: CFT Investments 1 LLC v Commonwealth Director of Public Prosecutions [2022] QDC 145 PARTIES: CFT INVESTMENTS 1 LLC (Appellant) v COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS (Respondent) FILE NO: 527/21 DIVISION: Criminal PROCEEDING: Appeal pursuant to s. 222 of the Justices Act 1886 (Qld) ORIGINATING COURT: Magistrates Court at Brisbane DELIVERED ON: 23 June 2022 DELIVERED AT: Brisbane HEARING DATE: 31 January 2022 JUDGE: Rinaudo AM DCJ ORDER: 1. Appeal allowed. 2. The sentence imposed by the learned Magistrate on 8 February 2021 is set aside. 3. The appellant is discharged without proceeding to conviction pursuant to s. 19B(1)(d) Crimes Act 1914 (Cth). CATCHWORDS: CRIMINAL LAW – APPEAL – APPEAL AGAINST SENTENCE AND CONVICTION – whether the Magistrate erred by concluding that s. 19B of the Crimes Act 1914 (Cth) was not in the range of appropriate sentencing options – whether the Magistrate failed to take into account the circumstances in which the offence was committed – whether the Magistrate did not take into account, or give sufficient weight to, the evidence contained in the affidavits tendered – whether the sentence was excessive – whether a conviction should have been recorded -- 1 of 15 -- 2 LEGISLATION: Crimes Act 1914 (Cth), ss. 16A, 19B Justices Act 1886 (Qld), ss. 222, 223 Protection of the Sea (Prevention of Pollution from Ships) Act 1983, ss. 21, 26F CASES: Bull v Commissioner of Police [2020] QDC 35 Federal Steam Navigation Co. Ltd. v Department of Trade and Industry [1974] 1 WLR 505 Lim Chin Aik v The Queen [1963] AC 160 Markarian v The Queen (2005) 228 CLR 357 Robinson Helicopter Company Inc v McDermott [2016] HCA 22 R v Callow [2017] QCA 304 R v Frith [2017] QCA 143 Thorneloe v Filipowski [2001] NSWCCA 213 COUNSEL: E. Cox SC for the appellant M. Dalton for the respondent SOLICITORS: Aus Ship Lawyers for the appellant Commonwealth DPP for the respondent Background [1] On 8 March 2021, CFT Investments 1 LLC (the appellant) filed a notice of appeal, pursuant to s. 222 of the Justices Act 1886 (Qld) (the “Act”), in respect of a sentence imposed on it in the Townsville Magistrates Court on 8 February 2021. The appellant was fined $7,500.00 and a conviction was recorded. The grounds of appeal are: (a) the Magistrate was in error by concluding that s. 19B of the Crimes Act 1914 (Cth) was not in the range of appropriate sentencing options in respect of the defendant, CFT Investments 1 LLC; (b) the Magistrate failed to take into account the circumstances in which the offence was committed, namely, the defendant was the legal owner and financier of the ship. The defendant had, by demise, chartered the ship, and consequently, had no control over the operation of the vessel or the vessel’s garbage system. The -- 2 of 15 -- 3 defendant was only the legal owner for the purpose of securing the financing of the vessel; (c) the Magistrate did not take into account, or give sufficient weight to, the evidence contained in the affidavits tendered; (d) the sentence imposed on the defendant was excessive; and (e) no conviction should have been recorded against the defendant, having regard to the matters set out in s. 19B of the Crimes Act 1914 (Cth). The offence [2] The appellant, together with the master-of-ship, MV Eco Marina Del Ray (the “Vessel”), were charged with an indictable offence pursuant to s. 21(1) of the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 (the “POTS Act”). Both the appellant and the master-of-ship pleaded guilty to the offence. [3] It was alleged that, on 22 May 2020, the master was sailing the Vessel between Singapore and Brisbane, Australia. At 18:30 hours on 22 May 2020, and within Australia’s exclusive economic zone, the Vessel was north-east of Sandy Cape. [4] It was alleged that this location was approximately 0.5 nautical miles from an exclusion zone (known as MARPOL Annex V Boundary) and within 12 nautical miles of that boundary. [5] At this time, an entry was made in the Garbage Record Book (required to be kept in accordance with Regulation 10 of MARPOL Annex V) that a discharge of 0.06 cubic metres of food waste was disposed of into the sea. The entry was signed by the Chief Officer, and signed and endorsed by the master, on 25 May 2020. Upon inspection by port authorities, the discharge was discovered to be within the 12 nautical mile boundary, and the master and the appellant were subsequently charged. [6] It was noted, in the statement of facts provided to the Court, that both the master and the company expressed their regret in relation to the incident and have since taken steps to ensure the crew of the Vessel are aware of the meaning of “from the nearest land” in relation to the north-eastern coast of Australia. -- 3 of 15 -- 4 Magistrate’s decision [7] In his sentencing remarks, the learned Magistrate rejected the appellant’s application of s. 19B in the first paragraph of his sentencing remarks as follows:1 I will deal firstly with the application of 90B [sic]. I am not of the view that the – in relation to the company, the…[character]…of that entity such as we would – nor am I convinced that the offence was of a trivial nature, and nor am I of the view that the offences were committed under extenuating circumstances in relation to the company. [8] In his reasons, the Magistrate concluded that the matter was not frivolous in nature, however, accepted that the offence was at the lower end of the scale of seriousness and rejected that the offence was committed under extenuating circumstances. [9] The Magistrate acknowledged that the offence occurred because of a mistake as to how the measurement for the nearest point of land was to be taken. He accepted the good character of both the appellant and the master, that the pleas were early pleas, that there was cooperation at every stage of the proceedings, that there was a degree of contrition shown for the offence and that extra training had been undertaken by the crew. The Magistrate accepted that rehabilitation was “well in hand”. [10] The learned Magistrate ultimately determined that fines were appropriate. The master was fined $750.00, and the appellant, $7,500.00. Section 222 Appeals [11] This appeal is brought pursuant to s. 222 of the Act. Section 222 of the Act provides that a person who feels aggrieved by an order made by a Justice (in this case, a Magistrate) in a summary way may appeal within one month to a District Court Judge. This appeal is brought within time. [12] In a s. 222 appeal, the Court is empowered to intervene:2 …only if the sentencing discretion miscarried, either by specific error (such as acting upon a wrong principle, mistaking the facts, taking into account irrelevant circumstances or failing to take into account relevant circumstances) or by imposing a sentence which is “unreasonably or plainly unjust” such as to demonstrate that the sentencing discretion must have miscarried even though no specific error can be identified: House v King (1936) 55 CLR 499 at 505. 1 Transcript of Decision, TS2.1 to 2.6. 2 Bull v Commissioner of Police [2020] QDC 35 at [5]. -- 4 of 15 -- 5 [13] In other words, a mere difference of opinion about the way in which the discretion should be exercised is not a sufficient justification for review. [14] In R v Callow [2017] QCA 304 at [36], Morrison JA reinforced what Gleeson CJ, Gummow, Hayne and Callinan JJ said in Markarian v The Queen (2005) 228 CLR 357 at 371: Furthermore, there is no one single correct sentence. Judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the relevant statutory regime. [15] In referring to Markarian, Boddice J said in R v Frith [2017] QCA 143 at [35]: In any event, that the sentence imposed on the applicant was higher than imposed in another factual circumstances does not establish manifest excessiveness. A particular fact situation does not support a single correct decision. The sentencing discretion involves allowance of flexibility in the exercise of that discretion. [16] An appeal under s. 222 is by way of rehearing of the original evidence.3 [17] In Robinson Helicopter Company Inc v McDermott [2016] HCA 22 at [43], the High Court noted that the task of a Court conducting an appeal by way rehearing is: to conduct a “real review” of the evidence given at first instance and of the judge’s reasons for judgment to determine whether the judge erred in fact or law. If the Court of Appeal concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings. Section 19B Crimes Act 1914 (Cth) [18] Insofar as it is relevant, s. 19B of the Crimes Act 1914 (Cth) states: (1) Where: (a) a person is charged before a court with a federal offence or federal offences; and (b) the court is satisfied, in respect of that charge or more than one of those charges, that the charge is proved, but is of the opinion, having regard to: (i) the character, antecedents, age, health or mental condition of the person; (ii) the extent (if any) to which the offence is of a trivial nature; or (iii) the extent (if any) to which the offence was committed under extenuating circumstances; that it is expedient to inflict any punishment, or to inflict any punishment other than a nominal punishment, or that it is expedient to release the offender on probation; the court may, by order: 3 Justices Act 1886 (Qld), s. 223. -- 5 of 15 -- 6 (c) dismiss the charge or charges in respect of which the court is so satisfied; … [19] The appellant was fined $7,500 and a conviction was recorded. [20] The learned Magistrate heard submissions on 8 February 2021 and immediately imposed sentences on the appellant and the co-accused master-of-ship, with reasons read into the record. [21] The respondent concedes “that the Magistrate failed to provide adequate reasons to support his conclusion that the appellant had not identified a relevant factor under section 19B(1)(b)(i)-(iii) of the Crimes Act 1914”. It is conceded that the failure amounts to an error of law.4 Appellant’s submissions [22] The appellant submitted that the learned Magistrate failed to properly consider submissions made by the defendant at the sentence hearing that s. 19B factors existed such that no conviction should have been recorded. It was submitted that certainly factors in accordance with s. 19B(1)(b)(i) and (iii) clearly apply, and likely s. 19B(1)(b)(ii) factors also apply. [23] In respect of s. 19B(1)(b)(i) factors, the appellant says that the finding that the appellant came before the Court with no adverse entries on their history and was to be regarded as a good corporate citizen, was inconsistent with the decision of the Magistrate. It was submitted that the appellant was of good character, a good corporate citizen and had no history of previous offending. It was submitted that even the conclusion reached by the Magistrate, which was clearly open on the evidence, was sufficient to satisfy the provisions of s. 19B(1)(b)(i).5 [24] In respect of s. 19B(1)(b)(iii), it was submitted that extenuating circumstances exist because “the appellant became strictly liable for the offence as a consequence of their legal status as “owner” of the ship and in circumstances where they did not have the 4 Respondent’s Outline of Argument at [1]; Drew v Makita (Australia) P/L [2009] QCA 66 at [57]–[59]. 5 Respondent’s Outline of Argument at [10]. -- 6 of 15 -- 7 capacity to, and were expressly excluded from, taking any steps that might have prevented the commission of the offence”.6 The submission went on:7 Section 26F(3) of the POTS Act imposes liability on the master and owner of a ship because they are assumed to have both the authority and capacity to control, directly or indirectly, the activities which are regulated by the provision. In the present case, practically, the appellant did not have the capacity to exercise such control, and is deemed to commit the offence in circumstances where it was contractually unable to do anything to ensure compliance with the terms of s 26F(3). Those circumstances must be seen as serving to lessen the seriousness of the offence committed by the appellant. Considered in this light [it] is also possible to characterise the offence within s 19(b)(1)(b)(ii) because the appellant’s conduct was trivial. That is not to suggest that the consequences of the garbage pollution would be described in the same way. [25] In oral submissions, Senior Counsel, appearing for the appellant, referred to three affidavits: one by the ship’s Captain, Angel Oasin; one by Stephen Perry, President of SBF Funding, Inc., the sole member of the appellant; and one by Evangelos Ikonomou, Chief Operating Officer of Central Mare Inc, who is authorised to make the affidavit on behalf of the operating interests of the ship namely, PCH Dreaming Inc and Cargill International SA. [26] The affidavit of Captain Oasin sets out details of the events leading to the offence, which are consistent with the agreed facts. [27] Evangelos Ikonomou’s affidavit describes the interests in the Vessel as follows: 3. I am authorised to make this affidavit on behalf of the operating interests of the Vessel, Cargill International SA (Cargill) and PCH Dreaming Inc (PCH Dreaming). [28] Pursuant to the terms of a multi-partite agreement dated 13 March 2019 (the “agreement”), Cargill is the head bareboat charterer and PCH Dreaming is the sub- bareboat charterer. PCH Dreaming is responsible for the operations of the Vessel and has control and possession of the Vessel.8 [29] Cargill and PCH Dreaming both have an option to purchase the Vessel. The appellant remains the owner for security purposes only.9 [30] The appellant explained that:10 6 Ibid at [13]. 7 Ibid at [15]. 8 Affidavit of Evangelos Ikonomou filed 5 February 2021 at [5]. 9 Ibid at [6]. 10 Transcript of Hearing, TS1-4.17 to 4.21. -- 7 of 15 -- 8 …in broad terms CFT charters the [V]essel by demise by which it gives the right to exclusive possession to PCH Dreaming and that entity then employs the Master and crew and maintains the system for environmental compliance and the position of CFT is merely as an owner for security purposes… [31] In paragraph 13 of the affidavit, the deponent sets out the prompt steps undertaken by the Vessel owners and operators “to enhance the crew’s awareness of their obligations with the discharge of garbage and the meaning of “Nearest Land””. [32] Stephen Perry, in his affidavit, deposes that the appellant provided financing for the construction of the Vessel, “Eco Marina Del Ray”, pursuant to, among other documents, a multi-partite agreement dated 13 March 2019.11 A copy of the agreement was annexed. [33] With reference to the annexure, it was submitted that the owners (referred to in the “SHELLTIME 4” agreement as PCH Dreaming) are contractually required to maintain a safe system of garbage disposal, environmental management and safe working on the Vessel. It was submitted that in the document, “Bare Boat Charter Agreement Hull No. 8242”, Clause 6(c) states that the Charterer (in that document, PCH Dreaming), including by its vessel managers, “shall have sole responsibility as owner and as technical and commercial operator under all Environmental Laws, and under certificates of financial responsibility…” and “[w]ithout prejudice to the generality of section 6(b)…the Charterer and the Vessel shall comply with all Environmental Laws including but not limited to all requirements of the United States Coast Guard…”. It was submitted that this amounts to “warranties that all of the responsibility for environmental compliance is vested in PCH”. Senior Counsel for the appellant went on to note that there was no right to terminate the contract and re-take control of the Vessel. [34] It was submitted that I would find error on the part of the learned Magistrate having failed to provide adequate reasons to support his conclusion and that I would consider the matter afresh. It was submitted, for the reasons set out above, that I would be satisfied, in respect of at least s. 19B(1)(b)(i), and for the reasons set out, (ii) and (iii) as well, and re-exercise the discretion in favour of the appellant. [35] The appellant relied on the decision of Thorneloe v Filipowski [2001] NSWCCA 213, which involved an oil pollution prosecution under the Marine Pollution Act 1987 11 Affidavit of Stephen Perry filed 5 February 2021 at [3]. -- 8 of 15 -- 9 (NSW). In that case, reference was made to Federal Steam Navigation Co. Ltd. v Department of Trade and Industry [1974] 1 WLR 505, where Lord Salmon said (at 526): The object of making the owners liable is to discourage them from taking a tolerant attitude towards a master who causes pollution. The object of making the master personally liable is to ensure that they do everything he can to avoid pollution. [36] It was noted that, in this context, the approach had been that the “mere fact that either the owner or master had been convicted would not warrant the other one not being convicted”. However, it was submitted that Justice Spigelman had taken a different approach at [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 consequence of the conduct, did not occur. [37] Reference was also made at [173] to the decision and the comments of Lord Evershed in Lim Chin Aik v The Queen [1963] AC 160 at 174: It is pertinent also to inquire whether putting the defendant under strict liability will assist in the enforcement of the regulations. That means there must be something he can do, directly or indirectly, by supervision or inspection, by improvement of his business methods or by exhorting those whom he may be expected to influence or control, which will promote the observance of the regulations. Unless this is so, there is no reason in penalising him, and it cannot be inferred that the legislature imposed strict liability merely in order to find a luckless victim. [38] Chief Justice Spigelman went on: 175 Brennan J, Lord Evershed and Lord Scarman were concerned with determining whether a particular offence required mens rea. However their Honours’ reasoning suggests that in the case of any criminal offence the Parliament will be strongly presumed to be concerned to impose liability only in the case of events that could have been avoided by some action on the part of the accused. 176 As Lord Salmon said in the Federal Steam Navigation case, immediately after the passage quoted above, (at 526; 115): “…I can see nothing unfair in making the master guilty for any contravention of section 5. If the vessel is not fitted with proper equipment and the master knows it, he should refuse to put to sea until the vessel is properly equipped. If he puts to sea when there has been some contravention of section 5 of which he could not have known, no court, were he is prosecuted, would do more than impose a nominal fine, or give him an absolute discharge.” 177 Although Lord Salmon understated the responsibility of the owner – which extends to establishing systems, guidelines and practices – nevertheless, there is a difference between the absentee character of ownership and the direct involvement in operations of the master. Both share responsibilities. The object of ensuring greater vigilance in the context of strict liability is -- 9 of 15 -- 10 served by imposing as the Parliament has done, co-ordinate, and not merely derivative, obligations on both. 178 It is, in my opinion, relevant to the exercise of the discretion under s 10 of the Sentencing Act, in the context of a strict liability offence, to consider what the applicant for the benefit of s 10 could have done to avert the event that has occurred. … 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. 187 I would uphold this submission. [39] It was submitted that the circumstances warrant the making of an order under s. 19B and that “there is no utility in terms of deterrent [sic] in making the mortgagee responsible where they have a contractual provision that requires environmental compliance.”12 It was submitted that, in that context, the Court “could not accept the submission made by the respondent that, for example, whether the respondent says the passing of possession contractually means that the owner could have done more and owner I mean mortgagee in this context.”13 [40] It was also submitted that the respondent could have utilised the provisions of s. 26F. It was contended:14 So had the prosecution wished to bring to account the person who didn’t maintain the system, they could have prosecuted not under the strict liability section but under 26F(1)(b). Having prosecuted just on the strict liability section, there really is no utility in recording a conviction against the financier. Respondent’s submissions [41] The respondent, in its written submissions, submitted that whilst the appellant accepts that it is the owner of the Vessel, it cannot seek to minimise its role and responsibility in respect of the Vessel by characterising itself as a “bare legal owner”, that is, an owner without a full beneficial interest or commercial/operation control.15 [42] It was submitted that the appellant is more than a mere financier or mortgagee for the construction of the Vessel. It is the registered or legal owner of the Vessel.16 12 Transcript of Hearing, TS1-17.5 to 17.6. 13 Ibid, TS1-17.7 to 17.10. 14 Ibid, TS1-17.15 to 17.19. 15 Respondent’s Outline of Submissions at [7]. 16 Ibid at [8]. -- 10 of 15 -- 11 [43] It was further submitted that the appellant cannot simply devolve its statutory responsibilities and liabilities to third parties through agreements from which it receives a commercial benefit.17 [44] As the owner, the appellant is required to exercise a degree of oversight to ensure the operators of the Vessel have adequate systems, guidelines and practices in place to comply with environmental legislation, such as the POTS Act, and that these safeguards are adhered to. These ownership obligations can be achieved through contractual provisions.18 [45] If this is not the case, the purpose of strict liability offences, such as s. 26F(3), to compel measures to avoid the possibility of pollution is undermined.19 It was submitted that there is no factor under s. 19B(1)(b)(i)-(iii) of sufficient weight to enliven the discretion. It was submitted that if the Court considers the discretion is enlivened, the Court would decline to exercise it, in circumstances where the appellant had a duty to ensure compliance with its obligations under MARPOL (and its statutory embodiment in domestic legislation), and failed to do so. The appellant should have ensured that there were adequate systems, guidelines, practices and training in place, prior to the Vessel entering Australian waters. Instead, it distanced itself from the operation of the Vessel and took no action to ensure it complied with its legal obligation. [46] It was submitted that the appellant cannot seek to wash its hands of responsibility but now seek to avoid the consequences of its lack of vigilance. In oral submissions, the respondent submitted that:20 It’s not simply just a mistake by the crew member, it goes further than that. As the learned magistrate observed, these are professional mariners. It bespeaks something a bit deeper going to their level of training and systems and that’s something that the financier should be concerned with, in my submission. Those steps and, for the purpose of the appeal, the respondent concedes that the learned magistrate didn’t deliver adequate reason as to why the discretion was not enlivened and that’s conceded but the lack of doing anything, in my submission, feeds into the first stage test and when your Honour looks at the enlivening of the discretion under the first stage of section 19B, it’s accepted and was accepted by the sentencing magistrate that the appellant was a good corporate citizen. 17 Ibid at [9]. 18 Ibid at [10]. 19 Ibid at [11]. 20 Transcript of Hearing, TS1-20.32 to 20.41. -- 11 of 15 -- 12 [47] The respondent characterised the appellant as a corporate entity that has washed its hands of responsibilities. It was submitted that the offending was not trivial - they were professional mariners. In distinguishing the decision of Thorneloe, the respondent stated that in this case, the training was inadequate and that is at the heart of the matter. Therefore, the master could have done more, and the financier could have contractually taken some steps, to ensure compliance. [48] In respect of the test to be applied, the respondent submitted that this was a question in two parts:21 One, whether or not the appellant even gets to the test of inexpediency, whether your Honour is satisfied under stage 1 that they have satisfied your Honour that there is sufficient grounds to enliven the discretion. And the second issue is, in my submission, the court shouldn’t grant relief in circumstances where financiers are simply washing their hands of responsibility. [49] It was submitted that the appellant could have done more under the multi-partite agreement, but they did not, and that consequently, they have exposed themselves to the consequences of not doing so. Consideration and decision [50] Section 19B of the Crimes Act 1914 (Cth) enables a Court to discharge offenders without proceeding to conviction. It provides: (1) Where: … (b) the court is satisfied…that the charge is proved…having regard to: (i) The character, antecedence, age, health or mental condition of the person; (ii) The extent (if any) to which the offence is of a trivial nature; or (iii) The extent (if any) to which the offence was committed under extenuating circumstances; That it is expedient to inflict no punishment, or to inflict any punishment other than a nominal punishment, or that it is expedient to release the offender on probation; the court may, by order: … (d) discharge the person, without proceeding to conviction in respect of any charge referred to in paragraph (c), upon his or her giving security, with or without sureties, by recognizance or otherwise, to the satisfaction of the court, that he or she will comply with the following conditions: (i) that he or she will be of good behaviour for such period, not exceeding 3 years, as the court specifies in the order; 21 Ibid, TS1-21.34 to 21.39. -- 12 of 15 -- 13 … [51] Section 16A of the Crimes Act 1914 (Cth) sets out the matters to which a court must have regard when passing sentence. [52] Sub-section (1) notes that in determining the sentence to be passed, or the order to be made, in respect of any person for a federal offence, a Court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence. [53] Sub-section (2) sets out other matters which must be taken into account as are relevant and known to the Court. Sub-paragraph (j) notes that the Court must have regard to the deterrent effect that any sentence or order under consideration may have on the person. [54] Sub-section (3) says: Without limiting the generality of subsections (1), (2) and (2AAA), in determining whether a sentence or order under subsection 19B(1), 20(1) or 20AB(1) is the appropriate sentence or order to be passed or made in respect of a federal offence, the court must have regard to the nature and severity of the conditions that may be imposed on, or may apply to, the offender, under that sentence or order. [55] The wording of sub-paragraph (j) suggests personal or specific deterrence. Such deterrence is aimed at discouraging offenders from committing the offence again. General deterrence is also a factor which the Court must take into account: that is, discouraging others from committing the same type of offending. [56] It is clear from the reasons of the learned Magistrate that he accepted correctly that the appellant is of good character and has not committed offences of this type or at all in the past. Being satisfied that the appellant is of good character, I am satisfied that s. 19B(1)(b)(i) is established. [57] Given the reasoning set out in paragraph [24] above in respect of the ownership status of the Vessel by the appellant, which I accept, I am also satisfied that there are extenuating circumstances in respect of this offending which, in my view, satisfies the provisions of s. 19B(1)(b)(i)(iii). [58] Whilst the learned Magistrate noted this offending was at the lower level of offending, in my view, pollution on the Great Barrier Reef of any type cannot be described as a trivial matter. -- 13 of 15 -- 14 [59] Whilst the appellant argues that its part in the pollution was trivial, I do not consider that the section should be interpreted in that way. The provision clearly says “the extent…to which the offence is of a trivial nature”. [60] I am therefore not satisfied that the provisions of s.19B(1)(b)(ii) are satisfied. [61] In any event, having been satisfied in respect of subsections (i) and (iii), I must now determine if, having regard to those identified factors, it is expedient to inflict any punishment, or to inflict any punishment other than a nominal punishment, or that it is expedient to release the offender on probation. [62] To do so, I must take into account the factors that appear in s. 16A(2) of the Crimes Act 1914 (Cth). The discretion is to be exercised with reference to the whole of the circumstances of the offender and the offence. The appellant is caught by the strict liability provisions in the Act. As owner, it is deemed responsible for the offending, as is the master. Although, the appellant, it appears, gave some consideration as to whether it was the owner for the purposes of the Act, having determined it was pleading guilty at an early time before the Magistrate. [63] Submissions were made that s. 19B applied and that no conviction should be recorded against the appellant. The learned Magistrate rejected this without giving adequate reasons for doing so. [64] Having regard to the authority of Thorneloe referred to above, the issue, in my view, really revolves around what more the appellant could have done to prevent the pollution. Whilst accepting the respondent’s submission that an owner cannot escape liability by devolving responsibilities in respect of pollution matters to others, in this case, in my view, it comes down to a question of whether the appellant is a true owner of the Vessel with obligations in respect of safety and environmental protection or whether it is, as is submitted by the appellant, merely an effective mortgagee of the Vessel with no control or responsibility in respect of the day-to-day operation of the Vessel, having entered into the agreements referred to above to ensure the operators will, in all respects, comply with all obligations in respect of the operation of the Vessel. [65] Whilst the respondent does not accept that the appellant has no control and could have done more, I am unable to see what more the appellant could have done. -- 14 of 15 -- 15 [66] Clearly, the provisions of the Act enable the respondent to take proceedings against the operator, but in this case, it chose to proceed with the strict liability provisions against the registered owner and the master. [67] Having regard to the provisions of s. 16A(2), and in particular, the deterrence factor, it seems to me that there is no element of deterrence which would be taken into account against the appellant, given its status as bare owner of the Vessel with no day-to-day control of the Vessel, and it is truly in the position of a mortgagee, having financed the construction of the boat for the purposes of charter to others. In those circumstances, it seems to me that it is expedient to apply the provisions of s. 19B(1)(b) and (d) of the Crimes Act 1914 (Cth). [68] In these circumstances, the sentence imposed by the learned Magistrate is set aside. The appellant is discharged without proceeding to conviction pursuant to s. 19B(1)(d). -- 15 of 15 --