Commonwealth Director of Public Prosecutions

Prosecution from beaching on Musgrave Island

Year: 
2020-2021
Category: 
International Assistance and Specialist Agencies
Location: 
Queensland

Name: Panforta Pty Ltd

Date of Judgment: 17 December 2020

Court: District Court of Queensland

Partner Agency: Australian Maritime Safety Authority

Summary of charges:

One offence contrary to s13(2) of Schedule 1 of the Marine Safety (Domestic Commercial Vessel) National Law Act 2012 (the Act) in that Panforta Pty Ltd was the owner of a domestic commercial vessel and did an act, namely operate said vessel, in contravention of s12(1) of the Act, being reckless as to whether the operation of the vessel was a risk to the safety of the vessel.

Synopsis:

A Crown appeal against the inadequacy of a fine imposed in relation to breaches of maritime safety of a tourist-carrying vessel was successful, resulting in an increase in the fine imposed on the defendant company from $25,000 to $40,000.

Key points:

The defendant company owned and operated a vessel named Spirit of 1770, which it used to ferry paying customers from the Australian mainland to Lady Musgrave Island. On 11 May 2016, the vessel caught fire and sank in the Coral Sea, approximately 15 nautical miles from the Township of 1770. The vessel had four crew members and 42 passengers onboard. During the course of the investigation into the sinking, a number of maritime safety breaches came to light, including that:

a) the Respondent exposed passengers and crew to serious risk to their safety by the operating of the vessel after episodes of engine overheating before the vessel was serviced and the overheating problem inspected;

b) the vessel’s safety was compromised by beaching due to the absence of sacrificial plates on its hull. ‘Beaching‘ is intentionally bringing the hull of the vessel into contact with a sandbar at the entrance to a creek on the mainland so passengers could be transferred to other vessels and transported up the creek at times when the tide was too low to allow the vessel to navigate the creek;

c) there was no procedure within the Safety Management System (SMS) relating to the beaching that would minimise the risk of damage to the hull or contain appropriate maintenance requirements; and

d) the above conduct was reckless.

The matter was initially listed for summary hearing in the Magistrates Court at Brisbane but negotiations between the parties lead to the defendant company entering a plea of guilty and being sentenced on 16 March 2020.

Sentencing and Appeal:

The defendant company was convicted and fined the sum of $25,000. The Sentencing Magistrate considered that there was a need for general deterrence to ensure the safety of the industry, noting that tourism depended on the vigilance of owners and operators to operate safely. Fortunately, no one was injured. The Sentencing Magistrate considered that the offending was mid-range in terms of objective seriousness, noting that the offending occurred over a period of 16 months.

The Crown appealed against the sentence imposed on the basis that it was manifestly inadequate, having regard to the categorisation of the offending by the Sentencing Magistrate as mid-level and the maximum penalty applicable.

Judge Dann DCJ, in allowing the appeal and increasing the fine to $40,000, remarked:

"The respondent ran a business taking paying passengers across the sea from the Australian mainland to Lady Musgrave Island. It was a business where the continuing seaworthiness of the vessels used to do so, its practices to maintain its vessels appropriately and to adopt safe operating procedures were of paramount importance to the safety of its paying passengers. It could – and did – accommodate large numbers of passengers on each trip with the vessel, thereby exposing large numbers of persons to risk if something were to go awry. It did so over a protracted period of 16 months. The fine imposed, of $25,000, when measured against a maximum sentence of $180,000, in all the circumstances of this offence, was manifestly inadequate."

Relevant links:

AMSA Media release – 23 March 2020 – Spirit of 1770 company fined for reckless operation