East by West Company Limited v Maritime New Zealand

[2020] NZHC 1912

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2018-085-932

[2020] NZHC 1912

EAST BY WEST COMPANY LIMITED

v

MARITIME NEW ZEALAND

Hearing:	10 March 2020
Appearances:	H M Z Lanham and P C Dawson for Appellant D La Hood for Defendant
Judgment:	31 July 2020
Reissued:	7 August 2020

JUDGMENT OF CLARK J

Table of Contents

Para Nos

Introduction  [1]
The offending  [3]
Section 48 charge  – City Cat grounding  [5]
Section 49 offending  [11]

Sentencing under HASWA  [16]

Decision under appeal  [28]
Principles governing this appeal  [30]
Grounds of appeal  [36]

Section 48 charge: starting point  [39]

Overview of appellant’s position  [39]
Overview of respondent’s position  [46]

Discussion: s 48 charge starting point  [52]

Reasons  [52]
Identification of the operative acts or omissions at issue  [56]

EAST BY WEST COMPANY LIMITED v MARITIME NEW ZEALAND [2020] NZHC 1912 [31 July 2020]

Nature and seriousness of risk  [61]

Degree of departure from industry standards  [65]
Obviousness of the hazard  [70]
Availability cost and effectiveness of means to avoid hazard  [74]
Current state of knowledge of risks and severity of harm that could result     [75]

Current state of knowledge of means available to avoid the hazard or mitigate

the risk of its occurrence  [78]
Conclusions as to culpability  [79]

Section 49 charge: starting point  [86]

Guidance on sentencing for s 49 offending  [86]
Overview of appellant’s position  [92]

Respondent’s position  [97]

Discussion  [100]
Culpability  [106]
Discounts  [116]
Result  [127]

Introduction

[1]    The appellant, East by West, operates a ferry service in Wellington harbour. It pleaded guilty to two charges under the Health and Safety at Work Act 2015 (HASWA or, the Act) and was fined a total of $380,000.1 East by West appeals on the ground the sentence was manifestly excessive.

[2]    The key question raised by the appeal concerns the starting points adopted by the District Court in relation to each charge. As this is the first occasion the Court has considered s 49 of HASWA, counsel for the appellant suggests the appeal presents an opportunity to provide guidance as to the approach to be taken to sentencing under that provision.

The offending

[3]    East by West, a limited liability company, operates two passenger ferries in Wellington Harbour: the City Cat and the Cobar Cat. The City Cat has a capacity of 91 passengers and the Cobar Cat, 99 passengers and two crew.

[4]    A typical run of both the ferries is from Wellington CBD to Days Bay, Eastbourne and with variations to Seatoun and Somes Island.

1      Maritime New Zealand v East by West Ferry Company Ltd [2019] NZDC 24088 [Sentencing decision].

Section 48 charge – City Cat grounding

[5]    On Sunday 16 April 2017, the City Cat was on a regular run between Wellington CBD and Seatoun. Mr Iain Wilson was employed by East by West as a skipper. As skipper, Mr Wilson was assisted on this run by one deckhand. There were 16 passengers on board. The weather was fine and calm with clear skies. At approximately 10.45 am the vessel grounded on a rock at the south end of Karaka Bay. At the time of impact the vehicle was travelling at a speed of approximately 17 knots, 170 metres from the shore at which point it was subject to a five knot limit under the Maritime Rules.2 It was approximately two hours after high tide.

[6]    The ferry was first impacted on the starboard hull, damaging it near the stern and splintering a section of the keel. The impact caused the ferry to jump and alter course slightly. The port hull then struck the rock shearing off the rudder mount and pushing the rudder into the hull. Passengers were located on both the top deck and inside the ferry. They were jolted in their seats. One passenger fell from her seat hitting her back and neck although she did not require first aid.

[7]    The City Cat was carrying an outdated nautical chart of the area that did not show weeds near to where the vessel grounded. The most up to date chart warned of weed at the point where the vessel grounded. Weed is indicative of rocks close to the surface. The chart carried by the City Cat warned of neither weed nor rocks.

[8]    The skipper was charged under the Maritime Transport Act 1994 with operating a ship in a manner causing unnecessary danger or risk to persons or property.3 Mr Wilson pleaded guilty and was sentenced separately.

[9]    For the purposes of HASWA the conduct of an employee or agent acting within the scope of her or his authority is to be treated as the conduct of the employer.4 Thus, East by West was charged under s 48 of HASWA with failing to ensure, as far as reasonably practicable, the health and safety of passengers and crew thereby exposing

2      Maritime Rules, part 91 – Navigation Safety Rules, 1 November 2016. Under rule 91.6 a vessel may not be operated at a speed not exceeding five knots within 200 metres of shore or any structure.

3      Maritime Transport Act 1994, s 65(1)(a) and s 65(3)(a).

4      Health and Safety at Work Act 2015, s 161.

one or more individuals to whom a duty was owed to a risk of death or serious injury. The maximum penalty for “persons conducting a business or undertaking” (PCBU)5 that are not individuals under s 48(2)(c) of HASWA is a $1.5 million fine.

[10]   In pleading guilty to the s 48 charge, East by West accepted that it failed to take but should have taken the following reasonably practicable steps:6

(a)ensuring that its vessels carried all nautical charts appropriate to their area of operations and suitable for the type of navigation being conducted. In particular, it should have ensured City Cat was carrying chart NZ 4634.

(b)ensuring it did not operate passenger ferries at speeds in excess of five knots within 200 metres of shore while carrying passengers and crew; and

(c)implementing adequate processes to prevent its vessels from travelling at speeds in excess of five knots within 200 metres of land while carrying passengers or crew, including by:

(i)monitoring the speed and course of ships using the data readily available to it from:

·     its vessels’ Automated Information System (AIS)7 (Marine Traffic.Com provides 24 hours of AIS data for any vessel with AIS installed); or

·     the chart plotters aboard its vessels which record where each vessel has been each day.

(ii)implementing a variable range marker on its ships’ radar to highlight when the vessel was within 200 metres of land;

(d)ensuring that skippers were aware of the relevant Maritime Rules concerning safe navigation; and

(e)implementing internal procedures to ensure skippers comply with Maritime Rule 91.6 (relating  to  maximum  speed  limits  within  200 metres of land).

Section 49 offending

[11]   During the investigation into the grounding Maritime New Zealand identified multiple instances of East by West’s ferries travelling at excessive speeds within

5      Section 17.

6      Summary of Facts [35] and [41].

7      AIS transmits a vessel’s speed and position every 30 seconds using a very high frequency transmitter. The track can be publicly viewed on the internet, including through mobile devices.

200 metres off shore. Under Maritime Rule 91.6 a vessel may not exceed five knots within 200 metres of shore or a structure. Between 15 May 2017 and 12 April 2018:

(a)On six occasions City Cat or Cobar Cat came within 100 metres of Point Jerningham light house at speeds above 15 knots. One of the occasions was two weeks after the skippers signed a memorandum circulated by the company about compliance with the rule. On that occasion, the ferry travelled at 15 knots within 68 metres from the light house.

(b)There were 151 instances where City Cat or Cobar Cat travelled at  15 knots or above within 180 metres of Point Jerningham.

(c)On two instances a ferry  travelled  in  excess  of  16 knots  within  170 metres of shore in Karaka Bay (where the grounding occurred).

(d)On 628 occasions City Cat or Cobar Cat travelled at 15 knots or above within 180 metres of the Thorndon container terminal light. On one of these occasions a ferry travelled at 18 knots within 80 metres of the terminal light.

[12]   East by West pleaded guilty to a charge under s 49 of failing to comply with its duty to ensure as far as reasonably practicable, the health and safety of its workers and passengers between 17 April 2017 and 12 April 2018. Section 49 carries a maximum fine of $500,000.

[13]   In pleading guilty to the s 49 offending East by West accepted that to ensure the safety of its workers, passengers and other sea users was not put at risk it should have taken the reasonably practicable steps set out above at [10](b)-(c) but that it failed to do so. A further reasonably practicable step that it should have taken but failed to take was to implement internal procedures to ensure that skippers complied with r 91.6 of the Maritime Rules. East by West acknowledged the steps available to it were neither expensive nor time-consuming.8

8      Summary of Facts [45] and [51]–[52].

[14]   In the course of his interview with the investigators one of East by West’s directors characterised compliance with the Maritime Rules as a regulatory rather than a safety issue. East by West’s policy was to trust its skippers to comply with the Maritime Rules.

[15]   Before sentencing East by West filed a notice of disputed facts. I will return to the disputed facts in due course.

Sentencing under HASWA

[16]   The main purpose of HASWA is to secure the health and safety of workers and workplaces by the following (relevant) means:9

(a)protecting workers and other persons against harm to their health, safety and welfare by eliminating risks arising from work;10

(b)securing compliance through effective compliance and enforcement measures;11

(c)ensuring appropriate scrutiny and review of actions taken by persons performing functions or exercising powers under the Act;12

(d)providing a framework for continuous improvement and progressively higher standards of work health and safety.13

[17]In furthering s 3(1)(a):14

… regard must be had to the principle that workers and other persons should be given the highest level of protection against harm to their health, safety, and welfare from hazards and risks arising from work ….

9      Health and Safety at Work Act, s 3.

10     Section 3(1)(a).

11     Section 3(1)(e).

12     Section 3(1)(f).

13     Section 3(1)(g).

14     Section (3)(2).

[18]   Subpart 2 of part 2 of HASWA imposes duties of care on PCBUs. Section 36 sets out the primary duty of care and requires a PCBU to ensure, so far as is reasonably practicable, the health and safety of its workers and that the health and safety of other persons is not put at risk from the operation of the PCBU’s business.

[19]   “Reasonably practicable” means that which is or was, at a particular time, “reasonably able to be done … taking into account and weighing up all relevant matters” including:15

(a)the likelihood of the hazard or the risk concerned occurring; and

(b)the degree of harm that might result from the hazard or risk; and

(c)what the person concerned knows, or ought reasonably to know, about—

(i)the hazard or risk; and

(ii)ways of eliminating or minimising the risk; and

(d)the availability and suitability of ways to eliminate or minimise the risk; and

(e)after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.

[20]HASWA creates three offences in relation to duties under the Act:

(a)Under s 47 an offence is committed if a person engages in reckless conduct exposing any individual to whom a duty is owed, to risk of death, serious injury or illness. The maximum penalty is a $3 million fine.

(b)Under s 48 an offence is committed if a person fails to comply with a duty under subpart 2 or 3 of the Act and that failure exposes any individual to a risk of death or serious injury or illness. The maximum penalty is a $1.5 million fine.

(c)Under s 49 a person commits an offence if that person has failed to comply with a duty under subpart 2 or 3 of the Act. The maximum

15     Section 22.

penalty is a $500,000 fine.

[21]   Section 151 is important. It has been described as confirming the general applicability of the Sentencing Act 2002 principles but highlighting features of the Sentencing Act to which particular attention must be given.16 Section 151 provides:

151     Sentencing criteria

(1)This section applies when a court is determining how to sentence or otherwise deal with an offender convicted of an offence under section 47, 48, or 49.

(2)The court must apply the Sentencing Act 2002 and must have particular regard to—

(a)sections 7 to 10 of that Act; and

(b)the purpose of this Act; and

(c)the risk of, and the potential for, illness, injury, or death that could have occurred; and

(d)whether death, serious injury, or serious illness occurred or could reasonably have been expected to have occurred; and

(e)the safety record of the person (including, without limitation, any warning, infringement notice, or improvement notice issued to the person or enforceable undertaking agreed to by the person) to the extent that it shows whether any aggravating factor is present; and

(f)the degree of departure from prevailing standards in the person’s sector or industry as an aggravating factor; and

(g)the person’s financial capacity or ability to pay any fine to the extent that it has the effect of increasing the amount of the fine.

[22]   Although s 151 directs the courts to have particular regard to specified sections of the Sentencing Act, the highlighting of particular factors “does not negate the core applicability of all of the Sentencing Act”.17

16     Stumpmaster v WorkSafe New Zealand [2018] NZHC 2020, [2018] 3 NZLR 881 [Stumpmaster] at [22].

17 At [23].

[23]   The correct approach to sentencing under HASWA is authoritatively stated in the guideline judgment of Stumpmaster:18

… A four step approach is now required:

(a)assess the amount of reparation;

(b)fix the amount of the fine by reference first to the guideline bands and then having regard to aggravating and mitigating factors;

(c)determine whether further orders under ss 152–158 of HASWA are required; and

(d)make an overall assessment of the proportionality and appropriateness of the combined packet of sanctions imposed by the preceding three steps. This includes consideration of the defendant’s ability to pay, and also whether an increase is needed to reflect the financial capacity of the defendant.

[24]   In Stumpmaster, the Court considered the factors that had been identified as relevant to sentencing in Hanham.19 In Hanham a Full Court set guideline sentencing bands for offending under the Health and Safety in Employment Act 1992 (HSEA), the predecessor to HASWA. The Stumpmaster Court described the Hanham factors as “well known” with little to be gained by rewording them.20 The Stumpmaster Court regarded all of the s 151 factors as covered by one or more of the Hanham considerations which are the following:21

(a)The identification of the operative acts or omissions at issue. This will usually involve the clear identification of the “practicable steps” which the Court finds it was reasonable for the offender to have taken in terms of [s 22 HASWA].

(b)An assessment of the nature and seriousness of the risk of harm occurring as well as the realised risk.

(c)The degree of departure from standards prevailing in the relevant industry.

(d)The obviousness of the hazard.

(e)The availability, cost and effectiveness of the means necessary to avoid the hazard.

18 At [35].

19     Department of Labour v Hanham & Philip Contractors Ltd (2008) 6 NZELR 79 (HC) [Hanham].

20     Stumpmaster, above n 16, at [37].

21 At [36].

(f)The current state of knowledge of the risks and of the nature and severity of the harm which could result.

(g)The current state of knowledge of the means available to avoid the hazard or mitigate the risk of its occurrence.

[25]   In reviewing the culpability bands established in Hanham, the Stumpmaster Court concluded the bands remained apposite under HASWA. The Hanham bands were a considered product of a sentencing methodology that remained applicable and significant revision was not required. That said, the addition of a fourth band better accommodated the broad generalised assessment that was required of the courts.22 The guideline bands for offending under s 48 are:23

low culpability	Up to $250,000
medium culpability	$250,000 to $600,000
high culpability	$600,000 to $1,000,000
very high culpability	$1,000,000 plus

[26]   The proposition that the legislative reforms were primarily focused at increasing the top end was rejected by the Stumpmaster Court. The Court stated:24

Once that is rejected, there can be no basis to so lower the range of the medium culpability band into which the ‘typical’ case is likely to fall.

[27]   The pattern of decisions before the Stumpmaster Court suggested medium culpability cases would typically involve a “minor slip up from a business otherwise carrying out its duties in the correct manner”.25

Decision under appeal

[28]Judge Sygrove recited the prosecution and defence submissions in detail.26 He:

(a)noted the purpose of HASWA, the sentencing criteria in s 151 of the Act and the guideline judgment of the Full Court in Stumpmaster v WorkSafe New Zealand;27

22 At [46].

23 At [53].

24 At [51].

25 At [52].

26     Sentencing decision, above n 1, at [13]–[32].

27     Stumpmaster, above n 16.

(b)referred to comparable cases under the Maritime Transport Act and sentencing regimes under the HSEA, the predecessor to HASWA; and

(c)canvassed the aggravating and mitigating factors relied upon by each party.

[29]   The Judge adopted a starting point of $350,000 for the s 48 offending and a starting point of $200,000 for the s 49 offending. A global discount of approximately 31 per cent was applied for East by West’s guilty plea, cooperation, remorse and financial circumstances. The essence of his Honour’s reasoning was contained in two paragraphs which I set out in full:

[28]      At the end of the day, there is no tariff decision in regard to this type of offending. In my assessment this was a one-off event under the s 48 charge and the company has an extremely good safety record otherwise, the fact that no one was injured, they have no previous convictions, and the company has taken steps to ensure there is no repetition of this type of offending, particularly in regard to speed, and taking all of the submissions I have heard into account, and those that I have read that the appropriate starting point under the s 48 charge is $350,000. Under the s 49 charge, a fine of $200,000, which gets us to a total of $550,000. I take a discount of 25 percent for early plea, I take a further discount for co-operation, remorse and potentially financial circumstances and reduce the total fine from $550,000 to $380,000 and that is my decision, and there will be no order for costs.

[29]      So the company is fined $280,000 in regard to the s 48 charge and in regard to the s 49 charge, $100,000.

Principles governing this appeal

[30]     Being a first appeal against sentence it is governed by s 250 of the Criminal Procedure Act 2011. The appeal must be allowed if the court is satisfied that for any reason there is an error in the sentence and a different sentence should be imposed.

[31]The error principle continues to apply. That is:28

The discretion to vary the sentence is not unfettered: this Court does not embark upon the sentencing afresh nor substitute its own opinion for that of the original sentence. There must be an error vitiating the exercise of the original sentencing discretion. In short, this Court must proceed on an “error principle”.

28     R v Shipton [2007] 2 NZLR 218 (CA) at [138].

[32]     In determining if a sentence is manifestly excessive the focus is on the sentence imposed rather than the process by which the sentence is reached. That said, there may be the uncommon case where what has gone wrong is such as to require correction although the sentence imposed may be within range.29

[33]     The parties are at one as to the applicable principles although Mr La Hood, for the respondent, parted company somewhat from the appellants’ understanding of the effect of Stumpmaster. The appellant points to the end result in Stumpmaster to support its contention that small adjustments to sentence may be made on appeal. In Stumpmaster the Court substituted a fine of $380,000 with one of $363,000, an adjustment to the fine of a mere 4.4 per cent.

[34]     An appellate court will not normally reduce a sentence where the adjustment would amount to tinkering.30 Stumpmaster does not displace the principle. In Stumpmaster a Full Court was convened for the purpose of reviewing guidelines in relation to HASWA under which maximum fines had risen to $1.5 million for offences under s 48. Under the HSEA the maximum fine had been $250,000.31 In relation to one of the three appeals before it the Court concluded that on the basis of the bands it had identified the starting point should have been $550,000 rather than $700,000 although that did not mean the sentence was manifestly excessive. After considering other factors relevant to sentence the end result was a fine of $363,000 in place of the

$380,000 originally imposed.32

[35]     The short point is that Stumpmaster is not to be taken as diminishing the well- established principle that an appeal court will not intervene unless the appellant shows there was a clearly, or manifestly excessive sentence or that the sentence was wrong in principle or that there are exceptional circumstances.33

29     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

30     See, for example, Haereroa v R [2020] NZCA 169 at [33]; Maihi v R [2013] NZCA 69 at [21]; and Mack v R [2013] NZCA 183 at [16].

31     Stumpmaster, above n 16, at [1].

32     At [84]–[87].

33     Tutakangahau v R, above n 29, at [30]–[31].

Grounds of appeal

[36]East by West appeals the total fine of $380,000 on the following grounds:

(a)The starting point adopted on the s 48(1) charge was manifestly excessive and in error as:

(i)the Judge did not assess and apply each of the relevant factors identified in Hanham;34 and

(ii)it placed the offending in the vicinity of mid band 2 of the guideline judgment in Stumpmaster when no harm resulted;

(b)The Judge failed to provide any reasons for the starting point adopted on the s 49 charge in circumstances where there is limited judicial guidance on the approach to be taken to sentencing under that section.

(c)The Judge erred in failing to apply the Hanham factors discretely to each of the individual charges.

(d)The starting point adopted on the s 49(1) charge was manifestly excessive having regard to the absence of harm and was in error as it placed the offending in the wrong culpability band.

(e)Contrary to ss 8 and 9 of the Sentencing Act, s 151 of HASWA and Stumpmaster the Judge erred in failing to give an appropriate discount for the East by West’s prior good record, its cooperation, the remedial steps it undertook and remorse.

(f)The Judge erred in failing to make an overall assessment of the proportionality and appropriateness of the fines as required by the approach set out in Stumpmaster.

[37]Accordingly, the sentence imposed was manifestly excessive.

34     Hanham, above n 19.

[38]     I propose to discuss the various grounds of appeal under two main heads addressing the starting points for the s 48 and s 49 offending. I will then reach a conclusion as to whether the sentences were manifestly excessive and then address the question of discounts and proportionality.

Section 48 charge: starting point

Overview of appellant’s position

[39]     First, it is said that while the Judge recognised the incident was a one-off by an otherwise safe company and that no-one was injured, there was no analysis of why the offending was categorised as mid-medium culpability. The Judge erroneously failed to properly weigh and assess the gravity of the offending and, indicating further error, there was no analysis of the Hanham factors despite the direction in Stumpmaster.

[40]     Ms Lanham submitted that it was not sufficient for the Judge to simply cite the relevant cases. The approach to sentencing must reflect the degree of transparency and the methodology considered necessary in cases of this type.35 Counsel submitted that once the Hanham factors are properly assessed, particularly the absence of aggravating features such as actual harm, it is clear that the starting point adopted was in error and the resulting sentence manifestly excessive.

[41]     As to the breach of r 91.6, the skippers had on board their vessels an advanced electronic “Seaplot” navigation system providing real time information as to the position, course and speed of the vessel and the depth of the water. Therefore, the absence of an additional chart showing weed is to be seen in light of what the skippers did in fact have.

[42]     East by West accepts that a vessel operating too close to shore is an obvious hazard but argues that it was not obvious to the company that its skipper would deviate from his training and responsibilities.

[43]     As to the degree of departure from prevailing industry standards, there was no evidence before the District Court as to industry standards or regulatory guidance for

35     Hanham, above n 19, at [113].

inshore transport operators to detect and deter potential grounding. East by West submits this lack of evidence is in contravention of the requirement that relevant material relating to industry standards should be supplied to the court wherever it is available.

[44]     East by West emphasises the fact that no harm resulted to any person from the incident. The absence of harm, combined with the factors highlighted above, strongly weighs against the offending being placed near the middle of the medium culpability band and the Judge erred in failing to apprehend and properly apply that distinction.

[45]For these reasons East by West submits a starting point of no more than

$280,000 was appropriate placing the offending near the lower end of the medium culpability band. East by West suggests there is an inconsistency between the approach taken to sentencing the skipper and sentencing the appellant. In sentencing Mr Wilson a starting point of $2,500 was adopted representing 16.88 per cent of the total maximum fine of $10,000.36 East by West advocates a starting point comparable to that in the sentencing of its skipper.

Overview of respondent’s position

[46]     The respondent, Maritime New Zealand, accepts Judge Sygrove could have included more detail in his judgment but it submits that adequate reasons were given in the circumstances and any deficiency in that regard cannot sustain an appeal.

[47]     As to the starting point, the respondent submits that, far from being manifestly excessive, it was lenient. To benchmark the appellant’s culpability against the fine imposed on Mr Wilson for his offending under the Maritime Transport Act is to misunderstand the nature of the appellant’s offending. Mr Wilson was convicted of operating a ship in a dangerous manner contrary to s 65 of that Act. Mr La Hood submitted the offending captured by the s 65 charge does not map neatly across to HASWA as implied by the appellant.

36     Maritime Transport Act, s 65.

[48]     In relation to the operative omissions by the appellant, at the least it ought reasonably to have known that its vessels were routinely failing to comply with r 91.6 by speeding close to land. Despite the fact it either knew or ought to have known, it took no steps to address the risk.

[49]     The respondent contends the absence of serious harm is mostly due to good fortune as the harm to the vessel itself was significant, indicating the force with which it ran aground.

[50]     The respondent further submits that given the obviousness of the hazard, and the means available to the appellant to address the risk, the appellant’s failures to ensure its vessels were operated in accordance with the Maritime Rules was a gross departure from industry standards. Not only has the appellant admitted that the necessary steps were neither expensive nor time-consuming the respondent says the necessary steps were relatively simple.

[51]     There is no dispute that the s 48 offending is appropriately placed in the Stumpmaster middle culpability band but as to the dispute about the starting point, the respondent submits a starting point in the upper half of the band would have been available.

Discussion: s 48 charge starting point

Reasons

[52]     I address first the appellant’s concern that the lack of reasoning in the  District Court judgment means it is difficult to understand how the assessment of culpability for each charge was made and why the respective starting points were adopted.

[53]     In Sena v New Zealand Police the Supreme Court addressed the kind of reasons which judges should provide in judge-alone trials:37

[36]     … [Reasons] should show an engagement with the case, identify the critical issues in the case, explain how and why those issues are resolved, and

37     Sena v New Zealand Police [2019] NZSC 55, [2019] 1 NZLR 575.

generally provide a rational and considered basis for the conclusion reached. Reasoning which consists of a conclusory credibility preference is unlikely to suffice… A failure to provide a reasoned resolution of a significant evidential dispute may, alternatively, suggest a misapprehension of the effect of the evidence, for instance a misapprehension of the significance of the dispute…

[36] In saying all of this, we accept that imperfection of expression is practically unavoidable, particularly in oral judgments. Accordingly, appellate courts should assess reasons contextually, in light of the evidence given and allowing for the burden for judges of balancing the need for prompt determination of criminal cases with other workload requirements. The adequacy (or not) of reasons must be assessed in light of the type of case (including seriousness) and the issues involved. What is required are reasons which address the substance of the case advanced by the losing party. Depending on the circumstances, this can be achieved without necessarily referring in detail (or sometimes at all) to every issue or argument which that party has advanced.

[54]     While the context is different, in my view the same principles apply to a sentencing decision. The Judge’s reasons are indisputably sparse. However, even accepting an insufficiency of reasons, the appellant must demonstrate an error in the District Court sentence such that the exercise of the original sentencing discretion is vitiated.38

[55]     I proceed, therefore to examine the appellant’s blameworthiness by reference to the factors identified in Hanham and Stumpmaster as relevant to an assessment of culpability.39

Identification of the operative acts or omissions at issue

[56] In pleading guilty, the appellant accepted it ought to have taken all of the reasonably practical steps set out above at [10]. Although the appellant accepted the City Cat should have been carrying nautical chart NZ 4634, showing weed, it submits the absence of that one chart must be seen in light of what the Master did have. The vessel was equipped with chart NZ 4633 that identified sudden shallowing of water to

0.7 metres and indicated contour lines typically relied upon by skippers to determine a line 200 metres from land. An electronic “Seaplot” navigation system, providing real time information as to the position, course and speed of the vessel as well as water depth, was also on board.

38     R v Shipton, above n 28.

39     Stumpmaster, above n 16. The factors are set out above at [24].

[57]     The appellant reiterates that it relies on the experience and expertise of its qualified skippers to navigate the vessel safely in accordance with Maritime Rules and in accordance with the Seaplot system:40 “[w]hile more could have been done, it is not the case that no steps had been taken to avoid the risks of grounding”.

[58]     The fact remains, however, that the City Cat was not carrying NZ 4634, a chart of the Wellington Harbour entrance and plans of wharves. The risk of submerged rocks in the area of the City Cat’s collision would have been obvious had chart NZ 4634 been on board. That chart showed weed in the area indicating the presence of rock. Chart NZ 4634 was required by r 25.6 of the Maritime Rules to be carried on board the City Cat. I accept the respondent’s submission that the regulatory requirement was not satisfied by the presence on board of other navigational aids. While NZ 4633 would show a shallowing to 0.7 metres, it would not show a shallowing due to a large rock. The navigational aids on board did not identify the risk of rocks at the point of the City Cat’s grounding.

[59]     In accepting it should have taken the “practicable step” of ensuring its vessels carried all nautical charts appropriate to the area of operation, in particular chart NZ 4634, the appellant is taken as knowing, or having ought to have known, that the City Cat failed to comply in this regard.41 More importantly the appellant knew or ought to have known its vessels were routinely failing to comply with Maritime Rule 91.6 by speeding close to land. Notwithstanding its knowledge, it did not address the risk and the steps it could have taken in terms of carrying NZ 4634. They were neither expensive nor time consuming.

[60]The appellant has not made out a case for lessened culpability in this regard.

Nature and seriousness of risk

[61]     The appellant accepts that the risk of harm is a key factor in assessing culpability and that here, the risk of grounding was a serious risk. But it says the

40 See [14] above for the statement by one of the appellant’s directors as to its policy in this regard.

41 The definition of reasonably practicable at s 22(c) of HASWA includes what the person concerned knew or ought reasonably to have known about the risk and the ways of eliminating or minimising it.

absence of actual harm, in combination with other matters it identifies in its favour, weighs against this offending being placed near the middle of the medium culpability band.

[62]     Stumpmaster confirmed that actual harm will be a relevant and important feature in fixing placement within the bands. 42 But the Court also emphasised the fact “a defendant is ‘lucky’ no-one was hurt does not absolve it of liability under s 48.”

[63]     In submitting that the absence of serious harm in this case was mostly due to good fortune, Mr La Hood has a valid point. The harm to the vessel itself was significant, indicating the force with which it ran aground. It was fortunate that no passengers or crew were seriously injured and that water users did not happen to be near the point where City Cat grounded on the day. Karaka Bay is a popular diving spot.

[64]     I conclude the appellant’s culpability was not mitigated by the fortuitous circumstances and the absence of actual harm. At the end of my assessment of these culpability factors, when I determine whether the Judge adopted the correct starting point, I will take into account the fact no actual harm was caused because that is relevant to determining the seriousness of the offence (as distinct from the blameworthiness of the appellant).43

Degree of departure from industry standards

[65]     In sentencing, the Court must have particular regard to the degree of departure from prevailing industry standards as an aggravating factor.44

[66]     The appellant submitted there is no evidence before the Court of industry standards or regulatory guidance for inshore transport operators in relation to detecting and deterring potential groundings. This suggests to the appellant that formal training programmes for Inshore Launch Masters is considered sufficient to ensure their

42     Stumpmaster, above n 16, at [40].

43     HASWA s 151(2)(d).

44     Section 151(2)(f).

understanding and application of the Maritime Rules pertaining to speed, collision and risks of grounding.

[67]     In Hanham the Court stated that wherever it is available relevant material relating to industry standards should be supplied to the sentencing court.45 It does not seem that the District Court Judge was referred to material relating to industry standards, beyond the legislative provisions. Nor did the parties suggest such material was available. Mr La Hood submitted that the appellant’s failure to ensure its vessels were operated in accordance with the Maritime Rules was a gross departure from industry standards. I agree that the relevant standards are to be found in the Maritime Rules themselves.

[68]     The Rules which East by West breached are contained in Parts 22, 25 and 26 of the Maritime Rules:

(a)Part 22: Collision Prevention, gives effect to the Convention on the International Regulations for Preventing Collisions at Sea 1972, to which New Zealand is a party. Part 22: provides the steering and sailing rules for ships as well as “standards for the installation, performance and use of lights for collision avoidance and the sound and light signals used for communication of safety information”. Part 22 is made under ss  36(1)(g)  and  36(1)(u)  of  the  Maritime  Transport  Act.    Under s 36(1)(g) the Minister of Transport may make rules providing for safe navigational and maritime operational procedures.

(b)Part 25: Nautical Charts and Publications sets out the requirements for carrying charts and nautical publications on ships. Its requirements apply to commercial vessels of 12 metres or more that operate within enclosed water limits and to all commercial vessels operating outside enclosed water limits.

(c)Part 91: Navigation Safety Rules has as its key object the setting of “basic navigation standards”. Part 91 continues the navigation safety

45     Hanham, above n 19, at [55].

rules contained in regulations which Part 91 replaced. Part 91 is made under  s 36(1)(t)  and  (tb)  of  the  Maritime  Transport  Act.    Under s 36(1)(tb) rules may be made regulating the conduct of ships in New Zealand waters for the purpose of securing safe navigation in those waters.

[69]     Section 35 of HASWA permits the court to take into account the requirements of other enactments when determining whether a person has complied with a duty under HASWA. No determination of compliance by the appellant with its statutory duties was required of course as it pleaded guilty to the charges under ss 48 and 49 of HASWA. There was no lack of relevant material bearing on standards before Judge Sygrove. The applicable industry standards are contained in the Maritime Rules. The charges brought against the appellant under HASWA were grounded in its breach of the Maritime Rules.

Obviousness of the hazard

[70]     While accepting the obviousness of a risk of harm posed by operating too close to shore, the appellant resists the obviousness of a risk that an experienced skipper would deviate from his training and responsibilities because qualified skippers are expected to understand and adhere to the Maritime Rules. In over 400,000 transits there has never been a grounding incident, nor a close quarters incident nor even a complaint of a close call. Furthermore, Maritime New Zealand had audited the East by West’s safety plans twice before this incident and had not recommended any system changes to better oversee adherence to r 91.6.

[71]     I can understand the appellant’s sentiment but I do not agree with its analysis of the hazard.

[72]     The relevant hazard was the risk of rocks being in the area of the collision. The City Cat was travelling too close to shore and, when it should have been travelling at five knots it was travelling at 17 knots. Critically though, it was not carrying the map that would have warned of weed and the presence of rocks. The relevant inquiry is whether the risk of collision with rocks was obvious not whether it was obvious to

East by West that its skipper might deviate from his training and responsibilities and breach the Rules.

[73]     The risk that there were rocks in the area of the collision would have been obvious had chart NZ 4634 been on board City Cat. The appellant accepted when it pleaded guilty that it should have ensured its vessels carried all nautical charts appropriate to their area of operations and in particular that it should have ensured City Cat was carrying chart NZ 4634. Its failure in that regard carried with it the obvious risk that rocks in the area of the collision would not be detected and the further consequential risk of collision.

Availability, cost and effectiveness of means to avoid hazard

[74]     East by West accepted that the reasonably practicable steps available to it46 were neither expensive or time consuming.

Current state of knowledge of risks and severity of harm that could result

[75]     The appellant says it never appreciated its skipper would ignore the real time information displayed on the Seaplot, or the onboard charts indicating depth, or that he would not comply with r 91.6.

[76]     The assessment of these matters is necessarily truncated because East by West has pleaded guilty to the charges on the basis of a highly detailed summary of facts. There has been no trial and therefore there is no evidence bearing on these points. To the extent the submissions tend to depart from the summary I must prefer East by West’s acceptance of relevant matters.

[77]     East by West accepted that it failed to ensure its skippers were aware of the relevant Maritime Rules concerning safe navigation. As stated earlier there was an obvious risk that rocks in the area would not be detected and the consequential risk of collision. The appellant can reasonably be assumed to have had knowledge of the risk given its obviousness.

46 Set out above at [10].

Current state of knowledge of means available to avoid the hazard or mitigate the risk of its occurrence

[78]     Again, in terms of the s 48 charge and the failure to carry chart NZ 4634, without which submerged rocks could not readily be detected, East by West was under a duty to ensure its vessels carried the relevant nautical charts and knew, or should have known, of its obligation. The step was readily and inexpensively able to be taken but was not. There is little to mitigate its culpability in this regard.

Conclusions as to culpability

[79]     The District Court Judge adopted a starting point of $350,000. His adoption of that figure recognised the company’s “extremely good safety record”, the fact no one was injured, that the company had no previous convictions and had taken steps to ensure there was no repetition of the offending particularly in relation to speeding.47

[80]     In reaching my own assessment of culpability for the purpose of the appeal I bear in mind that in fixing the culpability bands in Hanham and continuing them in Stumpmaster the Courts had regard to:48

(a)the purpose of HASWA;49

(b)the Sentencing Act principles; and

(c)the relationship between fines and reparation.

[81]     As against the factors the District Court Judge identified as tending to mitigate East by West’s culpability, I cannot overlook the nature and seriousness of the actual risk in this case and that the risk arose from a readily avoidable systemic failure.

[82]     Necessarily, prosecutions under s 48 will have in common a failure of duty which exposes someone to a risk of death or serious injury or serious illness. But despite that common feature the Court in Stumpmaster emphasised it was still

47     Sentencing decision, above n 1, at [28].

48     Stumpmaster, above n 16, at [41].

49     As to which see [16]–[18] above.

important to have regard to the exact risk involved. Here there was an actual risk of death or serious harm. I do not agree with the company’s assessment of its culpability as placing it at the bottom of the medium culpability band — “no more than around

$280,000”.

[83]     I would not have regarded the starting point as in error had the Judge placed the offending towards the middle of the medium culpability band. The Court in Stumpmaster regarded it as likely that under the new bands a starting point of

$500,000–$600,000 would be common and that for many businesses the fine would be onerous “as the legislation intends it to be”.50

[84]     It follows that I do not regard the starting point of $350,000 adopted by the District Court Judge as erroneous it being some $75,000 less than a starting point that may have been warranted.

[85]     Mr La Hood referred to the cases which Judge Sygrove cited as potentially offering assistance to this court. I have reviewed those cases. I have considered the variety of circumstances they represent and the sentencing outcomes.51 Ultimately, I am satisfied my conclusion is broadly consistent with the results reached in the appeals considered in Stumpmaster brought by Tasman Tanning Co Ltd, Niagara Sawmilling Co Ltd and Stumpmaster Ltd in which starting points between $500,000 and $550,000 reflected the offending and injuries in those cases.

Section 49 charge: starting point

Guidance on sentencing for s 49 offending

[86]     Where s 48 carries with it a maximum penalty of a $1.5 million fine s 49 carries a maximum fine of $500,000.

50 Stumpmaster, above n 16, at [54] and [66].

51    Department of Labour v New Zealand King Salmon Co Ltd DC Blenheim CRI-2008-006-2653,   16 July 2009; Maritime New Zealand v Fullers Group Ltd [2017] NZDC 11241; and Maritime New Zealand v Sanford Ltd DC Tauranga CRI-2009-070-1215, 1 March 2010.

[87]     At sentencing both East by West and Maritime New Zealand accepted the best approach was to adjust the Stumpmaster bands applicable to s 48, to reflect the lesser maximum penalty under s 49.

[88]     The tables set out in the prosecution sentencing memorandum for  the  District Court sentencing contains two tables. I have reproduced them below as they usefully reflect at each band level, the percentage of the maximum which the mid- point of the band represents.

Section 48 Stumpmaster bands

Culpability	Range	Midpoint	% of Maximum
Low	$0–$250,000	$125,000	0%–16.7%
Medium	$250,000–$600,000	$425,000	16.7%–40%
High	$600,000–$1 million	$800,000	40%–66.7%
Very High	$1 million – $1.5 million	$1.25 million	66.7%–100%

Proposed s 49 bands

Culpability	Range	Midpoint	% of Maximum
Low	$–$85,000	$42,500	0%–17%
Medium	$85,000–$200,000	$142,500	17%–40%
High	$200,000–$335,000	$267,500	40%–67%
Very High	$335,000–$500,000	$417,500	67%–100%

[89]     The appellant notes the bands were adopted in WorkSafe New Zealand v Alderson Poultry Transport Ltd in which an employee was struck by a forklift and died.52 The incident gave rise to charges under s 48 and s 49. These s 49 bands were agreed by counsel for WorkSafe and counsel for the defendants.

[90]     I endorse the s 49 bands adopted by Judge Kellar in sentencing the defendants in WorkSafe New Zealand v Alderson Poultry Transport Ltd. The proportionality across bands emphasised by the Court in Stumpmaster is maintained and, by analogy with the Stumpmaster bands for s 48, migration downwards at all levels reflects the lesser maximum penalties under s 49.53

52     WorkSafe New Zealand v Alderson Poultry Transport Ltd [2019] NZDC 25090 at [102].

53     Stumpmaster, above n 16, at [49].

[91]     It is important to highlight, however, that where the Court in Stumpmaster was concerned to develop guidelines applicable only to s 48(2)(c) — PCBUs that are not individuals — similarly, the s 49 bands set out above are proposed to apply only to    s 49(2)(c) (PCBUs that are not individuals).54

Overview of appellant’s position

[92]     The appellant identifies as the primary error that the $200,000 starting point places the offending as bridging the top of the “medium” culpability band and bottom of the “high” culpability band.

[93]     Counsel makes the point it is not possible to divine why the Judge assessed (effectively) the offending as high culpability because no reasons are provided.

[94]     Counsel highlights as well its objection to the inclusion of a statement in the summary of facts to the presence of water users in paths travelled by the company’s ferries.

[95]     Counsel submitted that inevitably, that disputed fact was relevant to assessing culpability as it concerned numbers of people, the risk involved and the likelihood of the risk eventuating. Although counsel accepts that in the Judge’s sentencing indication he said he did not need to deal with those facts as “they would not affect the end result”, counsel submits the Judge summarised the prosecution’s submissions on the disputed facts and their impact on culpability and must therefore have considered the disputed fact.

[96]     The appellant’s position is that, properly assessed, the offending falls at the lower end of the medium culpability band.

Respondent’s position

[97]     In the District Court the respondent proposed a starting point of $250,000 to reflect the company’s culpability which, the respondent submitted, and continues to submit, fell just below the mid-point of the high culpability band. As the appellant has

54     Stumpmaster, above, n 16, at [21].

admitted the s 49 offending exposed individuals to death or serious injury,55 that factor is a mandatory consideration in sentencing. In cases such as WorkSafe New Zealand  v Alderson Poultry where the risk was not proven, the risk in such cases can only be seen as aggravating the offending.

[98]     Even accepting the appellant’s approach to the disputed fact, the mere presence of the risk to passengers and crew from speeding justified a starting point at the cusp of the medium and high culpability bands. Mr La Hood submitted that if the risk of serious harm was both real and likely then s 8(b) and (c) of the Sentencing Act are engaged and the starting point would have to place the offender in the high culpability band.

[99]     The respondent accepted there were similarities between the present case and Police v Wellington City Transport Ltd upon which the appellant relies but that the present case involved greater culpability.56 The risks of water users being struck by a vessel travelling at speed had more serious consequences than for a passenger jammed in a bus door. And the failure to monitor and enforce skippers’ compliance with Maritime Rules was more serious than omitting a practicable step having lesser importance.

Discussion

[100]The first task is to clear away the contention around the disputed fact.

[101]   In a joint memorandum filed in the District Court ahead of sentencing East by West said it disputed [44] of the then summary of facts. Paragraph [44] addressed the concentration of water users in the area through which the company’s vessels travelled at high speed. Paragraph [44] read:

[44]When operating close to land, East by West’s passenger ferries travel along paths which bring them into areas frequented by other harbour users:

(a)Around the Miramar Peninsula: in this area, there is reduced visibility for skippers to see ahead because of the rocky outcrops In the water there are significant numbers of

55 Summary of Facts [47].

56     Police v Wellington City Transport Ltd [2015] NZHC 1442, (2015) 14 NZELR 290.

recreational swimmers, divers and kayakers, as well as large numbers of small recreational boats.

(b)Point Jerningham: is a well-known location frequented by ocean swimmers and scuba divers.

(c)Days Bay: significant numbers of swimmers, scuba divers and kayaker are often present at the north end of Days Bay.

(d)Around Somes and Ward Islands: small recreational boats are common, along with scuba divers fishing for scallops in the harbour.

(e)Karaka Bay (where the grounding occurred): is frequented by free divers, swimmers, scuba divers, kayakers and other small craft.

[102]East by West contended in the District Court that [44] should instead read:

When operating within 200m of shore, East by West passenger ferries travel along paths that could bring them into areas used by other harbour users including ocean swimmers, divers and kayakers.

[103]   The umbrella sentence in the corresponding statement in the summary of facts to which East by West pleaded guilty states:

[44]     When operating close to land, East by West’s passenger ferries travel along paths which bring them into areas frequented by other harbour users.

[104]   I proceed on the basis of the statement East by West itself proffered in the District Court by which it accepted the ferries travelled along paths that could bring them into areas “used” by other harbour users.57 I do not, however, see the distinction between that statement and the summary of facts as making a material difference to culpability.

[105]   While accepting the risk of collision must necessarily increase with greater numbers of users along paths travelled by the ferries, the culpability arises because there remained a risk of collision even without evidence of numbers of users or frequency of use. That risk was accepted as was the fact that serious harm, including serious injury or death might result from a collision.

57 Above at [102].

Culpability

[106]   As many of the factors bearing on culpability have been discussed in relation to the s 48 offending and have some overlap, I address in the round the culpability factors relevant to the s 49 charge.

[107]   East by West accepted that when operating within 200 metres from land, its passenger ferries travel along paths that could bring them into areas used by other harbour users including ocean swimmers, divers and kayakers. The company accepted that it failed to meet its obligation to ensure, so far as reasonably practicable, that the safety of its workers and other persons was not put at risk at work or from work carried out as part of its business. It admitted also that between 15 May 2017 and 12 April 2018, East by West’s passenger ferries travelled at speeds above seven knots within 200 metres of shore on over 3,500 instances, despite r 91.6 limiting speed to five knots within 200 metres of the shore. Examples of breaches of r 91.6 included the following:

(a)There is an increased risk of collision with other water users, who tend to be concentrated closer to shore.

(b)There is an increased risk of grounding (including on rocks) closer to shore where the water is shallower.

(c)When travelling at high speeds, there is less opportunity to take evasive action to avoid collisions and/or groundings.

(d)When travelling at high speeds, the momentum of the vessel is increased, raising the force experienced in a collision.

[108]   Even accepting the appellant’s submission that speed is only one factor relevant to the risk of a collision it has accepted that its speeding vessels increased the risk of collision with other water users, the risk of grounding, and reduced the opportunity take evasive action and increased the likely force in the event of a collision.

[109]   As to knowledge of the risk, the offending was aggravated by the fact it occurred after the grounding incident when the company was alerted to the risk of non- compliance with speed restrictions. The appellant accepts that point but it submits it took a series of measures and systems changes were made over the 12 months

following the April 2017 incident although inevitably it took time to investigate and implement these changes and re-educate skippers.

[110]   The skipper responsible for the collision on 16 April 2017 was suspended as a deterrent to staff from breaching r 91.6. Skippers were directed to cease operating vessels in breach of r 91.6 and skippers signed letters acknowledging their ongoing commitment to adhere to the rule. Various means of assisting skippers to identify the 200 metre zone were trialled and in August 2017 a “geofence” was installed on each vessels radar to indicate when it was 225 metres from shore. The Harbour Master was consulted for advice on how to ensure compliance and permission was sought from the Regional Council to make changes to the ferry timetables in December 2017 (coming into effect in April 2018) to lengthen journeys to decrease time pressure on skippers.

[111]   I accept that the improvements were progressive and that they could not be immediately effective because of the time taken to implement them. The appellant submits the only reasonably practicable step that was not taken until after charges were laid was to actively monitor the Cobar Cat and City Cat using vessel traffic monitoring software. Even accepting that this would have involved a significant time commitment, the company had an obligation to ensure its ferries did not operate at speeds in excess of the Maritime Rules. Section 3 of HASWA states that one of the means by which the Act is to achieve its purpose of securing the health and safety of workers and work places is by “ensuring appropriate scrutiny and review of actions

…  by  persons  performing  functions  or  exercising  powers”  under  the  Act.58     In

protecting workers and others against harm and eliminating or minimising risks “the highest level of protection against harm” is to be given.59

[112]   Section 30 imposes a duty of eliminating risks to health and safety as far as reasonably practicable. If it is not reasonably practicable to eliminate the risks the duty is to minimise the risks as far as is reasonably practicable.60

58     Health and Safety at Work Act, s 3(1)(f).

59     Section 3(2).

60     Section 30(1)(b).

[113]   One of the processes the appellant accepted it could have implemented to prevent its vessels from travelling at speeds in excess of five knots was to monitor the speed and course of ships using the data readily available to it. In pleading guilty the appellant accepted that the reasonably practicable steps available to it were neither expensive nor time-consuming.

[114]   All in all, the risks were high. The appellant (as with s 48) is to be taken as having had knowledge of the seemingly routine nature of the excess speed at which its ferries travelled and, in breach of its statutory obligations, it failed to effectively address the non-compliance of its skippers who continued to breach the rules on thousands of occasions over an 11-month period.

[115]   In the circumstances I see no error in adopting a starting point of $200,000 placing the offending on the very cusp of the medium and high culpability bands.

Discounts

[116]   The appellant’s complaint is that the Judge erred in failing to give an appropriate discount for its prior good record, its cooperation, the remedial steps it undertook and its remorse.

[117]   To the fine of $550,000 his Honour applied a discount of 25 per cent for the guilty plea, cooperation, remorse and financial circumstances. At the time the approach was incorrect.  Since 30 October 2019, the date of sentencing, the Court   of Appeal has reviewed the three-step sentencing methodology.61 In effect, the Judge’s approach to discounts reflects the two-step approach now to be applied in cases where a discount for a guilty plea is to be given.

[118]   In Stumpmaster the Court expressed concern about the potential for routine standard discounts to distort the sentencing process. “Proper analysis of the basis for the credit is required”.62

61     Moses v R [2020] NZCA 296.

62     Stumpmaster, above n 16, at [64]–[65].

[119]   The following factors are relevant to the assessment of an appropriate discount in this case:

(a)Those who owe duties under HASWA have a statutory duty to assist inspectors in the exercise of their powers under health and safety legislation.63 In those circumstances cooperation is to be expected and would not, in the usual case, attract a discount.

(b)In terms of reformative steps taken, the question is whether they went the extra mile or were to correct deficits that should not have existed in the first place.64

(c)The appellant does have a good safety record and these are its first offences. The admitted pattern of offending pre-grounding, along with the number of breaches in the 11-month period following are to be seen against the backdrop of the appellant’s meritorious record.

[120]   In my view a credit of up to 10 per cent was available. The Judge’s discount of (an apparent) five to eight per cent while not generous, was within his discretion.

[121]   The final step in the sentencing process is to make an overall assessment of the proportionality and appropriateness of the sentencing package reached including a defendant’s ability to pay.

[122]   The appellant does not pursue financial incapacity on appeal (although this was a matter before Judge Sygrove).

[123]   The appellant says the Judge should have assured himself the total fine was proportionate to the offending but there was no consideration at all of this step.

[124]   The respondent submits no such step was necessary because there was no “combined packet of sanctions” to consider. This is an allusion to Stumpmaster.

63     HASWA s 176.

64     Stumpmaster, above n 16, at [62].

[125]   I do not agree with the respondent’s approach. The Court must consider the totality of the sentences imposed for multiple offending. The total amount payable by way of monetary penalties (including reparation) is governed by the totality principle. The concept of proportionality is brought into play.

[126]   Having said that, in my view the total penalty was not, as the appellant claims, disproportionate to the overall gravity of the offending in this case.

Result

[127]For the foregoing reasons the appeal is dismissed.

Karen Clark J

Solicitors:

Dawson and Associates Ltd, Nelson for Appellant Luke Cunninghame Clere, Wellington for Respondent