Harvestpro New Zealand Limited v The Queen
[2015] NZHC 364
•5 March 2015
IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY
CRI-2014-416-0010 [2015] NZHC 364
BETWEEN HARVESTPRO NEW ZEALAND
LIMITED Appellant
AND
THE QUEEN Respondent
Hearing: 20 October 2014 Appearances:
A J Lloyd and O J Skilton for Appellant
S B Manning for RespondentJudgment:
5 March 2015
JUDGMENT OF PETERS J
This judgment was delivered by Justice Peters on 5 March 2015 at 11.30 am pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date: ...................................
Solicitors: Minter Ellison Rudd Watts, Auckland
Elvidge & Partners, Napier
HARVESTPRO NEW ZEALAND LTD v R [2015] NZHC 364 [5 March 2015]
[1] The Appellant (“HarvestPro”) appeals against conviction and sentence for breach of ss 6 and 50(1)(a) Health and Safety in Employment Act 1992 (“HSE”), in short for failing to take all practicable steps to ensure that its employee, Tau Henare, was not exposed to a hazard in his place of work.
[2] The conviction followed a defended hearing before Judge A J Adeane in the District Court at Gisborne between 12 and 14 May 2014. The Judge took a short adjournment at the conclusion of the evidence and then delivered an oral judgment entering a conviction.1 The Judge sentenced HarvestPro in June 2014, imposing a fine of $80,000 and ordering HarvestPro to pay reparation of $40,000 to Mr Henare.2
[3] HarvestPro’s appeal against conviction and sentence is brought pursuant to s 115 Summary Proceedings Act 1957 (“SPA”). The grounds of appeal against conviction are that:
(a) there was apparent bias on the part of the Judge; and
(b) the Judge did not take account of all relevant evidence.
[4] HarvestPro’s ground of appeal against sentence is that the reparation awarded and the fine imposed were manifestly excessive. On appeal HarvestPro submits the sums should have been $20,000 and $42,500 to $45,000 respectively.
Statutory provisions
[5] The charge against HarvestPro was brought by the Ministry of Business
Innovation and Employment (“MBIE”), the information stating:3
HARVESTPRO NEW ZEALAND LIMITED on or about 17 September
2012 [at] Whakaangiangi Forest being an employer, it failed to take all practicable steps to ensure the safety of its employee, namely TAU WINIATA HENARE while at work, in that it failed to take all practicable steps to ensure that TAU WINIATA HENARE was not exposed to hazards arising out of a log hauling operation, in his place of work.
1 Ministry of Business Innovation and Employment v HarvestPro New Zealand Ltd DC Gisborne
CRI-2013-016-629, 14 May 2014.
2 Ministry of Business Innovation and Employment v HarvestPro New Zealand Ltd DC Gisborne
CRI-2013-016-629, 13 June 2014.
3 Information CRN 13016500432, dated 15 March 2013.
[6] This charge was brought pursuant to s 50(1)(a) HSE which provides:
50 Other offences
(1) Every person commits an offence, and is liable on … conviction to a fine not exceeding $250,000, who fails to comply with the requirements of—
(a) a provision of Part 2 other than section 16(3); or
[7] The provision of Part 2 relied on was s 6 HSE, the effect of which is to require an employer to take “all practicable steps”, as defined in s 2A HSE:
6 Employers to ensure safety of employees
Every employer shall take all practicable steps to ensure the safety of employees while at work; and in particular shall take all practicable steps to—
...
(d) Ensure that while at work employees are not exposed to hazards arising out of the arrangement, disposal, manipulation, organisation, processing, storage, transport, working, or use of things—
(i) In their place of work; or
(ii) Near their place of work and under the employer's control;
and
…
and
2A All practicable steps
(1) In this Act, all practicable steps, in relation to achieving any result in any circumstances, means all steps to achieve the result that it is reasonably practicable to take in the circumstances, having regard to—
(a) the nature and severity of the harm that may be suffered if the result is not achieved; and
(b) the current state of knowledge about the likelihood that harm of that nature and severity will be suffered if the result is not achieved; and
(c) the current state of knowledge about harm of that nature; and
(d) the current state of knowledge about the means available to achieve the result, and about the likely efficacy of each of those means; and
(e) the availability and cost of each of those means.
(2) To avoid doubt, a person required by this Act to take all practicable steps is required to take those steps only in respect of circumstances that the person knows or ought reasonably to know about.
Background
[8] HarvestPro undertakes logging operations in Northland and on the East Coast of the North Island. Mr Henare was employed by HarvestPro as a trainee “breaker- out” at one of HarvestPro’s sites.
[9] As a breaker-out it was Mr Henare’s job to attach “strops” to felled trees on
the (sloping) site. The part of the site being worked is referred to as the “chute”.
[10] On the day in question, Mr Henare was positioned on the slope and in the chute, below a “landing” cut into the hillside. Mr Wirepa was operating a “hauler” on the landing, above Mr Henare. Mr Henare would put himself in a “safe place”, Mr Wirepa would send down the strops, Mr Henare would emerge and attach the strops to a cut log or “stem”, retreat to his safe place, and then signal to Mr Wirepa that it was safe to haul the stem to the landing. Mr Wirepa would haul up the stem and from there would drop it on the landing awaiting collection by a “loader”, in this case operated by a Mr Ashford.
[11] Mr Ashford’s job was to pick up the stem with the loader and take it to a “surge” pile to await processing. In this instance, the surge pile was at a right angle to the hill, with say two thirds of a stem on the landing itself and the remaining – but lightest – third overhanging the hill.
[12] Mr Wirepa communicated with Mr Henare via a “tooter”. There was, however, no means of communication between Mr Ashford and Mr Henare and neither could see or hear the other.
[13] On this occasion a stem that Mr Ashford was transporting fell from the loader. It is not entirely clear whether it fell as it was being placed on the surge pile or as it was nearly on the surge pile. The stem went over the landing and down the slope. Unaware of this, and in response to signals from Mr Wirepa, Mr Henare was in the chute and in the course of attaching the strops to another stem.
[14] The falling stem, estimated to weigh more than a tonne, hit Mr Henare and he sustained severe injury. It appears to have been generally accepted that Mr Henare was lucky to escape with his life. I refer below to Mr Henare’s victim impact statement. At this point it is sufficient to say that it makes for sobering reading.
Trial
[15] MBIE’s case was that the concurrent activities of Mr Ashford moving logs on the landing, whist Mr Henare worked below, exposed Mr Henare to a hazard that HarvestPro had failed to take all practicable steps to avoid. HarvestPro’s case was that the concurrent activities did not cause a hazard or, alternatively, that it had taken all practicable steps, because it would not have been foreseen that a stem (ie a log) falling from the part of the landing where Mr Ashford was working – between the “temporary position” and the “surge pile” – might hit someone in the “chute” below.
[16] The evidence was given over three days. The transcript comprises 368 pages. The prosecution called Mr Henare, Mr Wirepa and Mr Ashford as well as Mr Craig, a health and safety inspector employed by MBIE, and Mr Robert Prebble, an expert on matters pertaining to the forestry industry. HarvestPro called Mr Alan Paulson, its Regional Manager, and Associate Professor Rien Visser, a Director of Studies of Forestry Engineering at the University of Canterbury.
[17] MBIE also relied on HarvestPro’s accident investigation report (“accident report”). This document was prepared by HarvestPro and was executed by Mr Ashford and Mr Paulson on 25 September 2012 (approximately one week after the accident). The report itself identified the relevant hazards as “Machinery Moving logs in close proximity to breaker-outs” and “Machine Operators not communicating with B-outs”. “Contributing Factors” were identified as follows: “Communication – Mr Ashford should not have attempted to move logs in such
close proximity to where Mr Henare was working below him, without communicating if it was safe to do so” and “Lack of Supervision – Mr Henare not being supervised at the time of his accident”.
[18] At the conclusion of the evidence the Judge took a short adjournment and then delivered an oral judgment. The Judge accepted MBIE’s submission that the “uncoordinated, unsupervised decision of [Mr Ashford, Mr Wirepa and Mr Henare] to undertake concurrent activities” constituted a hazard within the meaning of the HSE. The Judge went on to say:4
[17] Further, I am satisfied beyond reasonable doubt that practical steps were available to eliminate that hazard. They lay in improved communication by one means or another. By way of example in this case, a supervisor given the resources of time to undertake effective supervision, would immediately have seen that two incompatible activities were underway and would have stopped one or the other.
[19] The Judge entered a conviction accordingly.
Appeal against conviction
Apparent bias resulting in a substantial miscarriage of justice
[20] HarvestPro submits that the Judge displayed apparent bias resulting in a substantial miscarriage of justice. It is common ground that this submission requires the Court to:5
(a) “establish the circumstances which have a direct bearing on a suggestion that the Judge was or may be seen to be biased. This factual inquiry should be rigorous ...”; and
(b)ask whether those circumstances might lead a fair-minded lay- observer to reasonably apprehend that the Judge might not bring an
impartial mind to the resolution of the case.
4 Ministry of Business Innovation and Employment v HarvestPro New Zealand Ltd, above n 1, at
[17].
5 Muir v Commissioner of Inland Revenue [2007] NZCA 334, [2007] 3 NZLR 495 at [62].
[21] The circumstances on which HarvestPro relies in the present case fall into two categories.
[22] The first category comprises the manner in which the Judge conducted the trial and includes comments made by the Judge in the course of the hearing, including discussions with counsel for HarvestPro.
[23] For instance, on the first day of the trial the Judge informed counsel that he had not asked for a transcript of the evidence and said that he would not be placing much reliance on it.
[24] At the end of the second day, the Judge said that the parties should not “count” on a reserved decision. HarvestPro’s first witness was giving evidence at this point.
[25] The Judge took only a 15 minute adjournment before delivering his oral judgment. Then at sentencing, both prosecution and defence counsel submitted that an award of $20,000 would be appropriate reparation. The Judge ordered twice that sum. The Judge refused to reduce the fine for any matters in mitigation, even though the prosecution itself supported a reduction of five per cent.
[26] I have considered each of these matters in their context. With respect to counsel I do not consider any of these matters to be of significance. The discussion as to the transcript arose because counsel asked whether the evidence was being transcribed. The Judge said that it would be transcribed, despite the fact that he had not asked for such transcription. At the hearing of the appeal, counsel for the Respondent told me that the Judge took “screeds of notes”. It is also apparent from the transcript that the Judge was following the evidence closely.
[27] The discussion as to a reserved decision took place in the context of the Judge asking counsel at the end of the second day whether they wished him to consider any authorities in particular. Counsel for HarvestPro said he anticipated time to make submissions after the close of the evidence. The Judge informed both counsel that they should not count on a reserved decision.
[28] As for the length of time taken to deliver judgment, it is apparent to me from a reading of the transcript that the Judge was familiar with the relevant statutory provisions and understood the issues that he would have to decide. The decision is well reasoned and I do not consider the promptness with which judgment was given to be evidence of apparent bias.
[29] The second category concerns interventions in the course of counsel’s examination of witnesses or questions that the Judge himself asked of those witnesses. To give an example of the type of interchange relied upon by HarvestPro, during the evidence of Mr Craig the Judge made the following comments:6
(i) “You see it occurs to me that even if you go back to the 19th century and the old quote safe system of work class quotes, what was happening here might’ve been found to be in breach of that?;
(ii) “Well what do you say to this? If you can’t take steps to keep the workers safe you don’t do the activity?;
(iii) “You might have thought that two pairs of eyes ... is better than one?” …
(iv) “Sure listen, isn’t the essence of this, where’s the surge pile?
If a surge pile’s way back against the hill where gravity cannot take over if something goes wrong and then that's
fine?; and
(v) “Presumably the problem is if you can't use that mechanism for the hauler operator to say “hang on a sec the loader’s coming in here”, and then “So the stop sign doesn't necessarily imply “Stop, get out of the way ... So this is a very limited communication? .. And you’re designed for when things are going right not for when they’re going wrong, would that be fair to say?”;
[30] These questions/comments were made in the course of more than 70 pages of evidence. Mr Craig, the witness, had been to the site, and the questions followed responses made to questions from counsel and were appropriate in their context. To the extent a question from the Judge might be described as “surmising” or seeking the views of a witness on a matter which, in retrospect, proved immaterial, they are
nevertheless unobjectionable when considered in their context.
6 Appellant’s Synopsis of Submissions dated 22 September 2014, at [4.4](b).
[31] I do not consider that the matters relied on by HarvestPro taken as a whole would lead the fair-minded lay-observer to apprehend that the Judge might not bring an impartial mind to bear. One authority to which counsel referred me, E H Cochrane Ltd v Ministry of Transport,7 seems appropriate. In that case, the Court of Appeal commented that the conduct of the Judge bespoke “a determination to illicit the truth … rather than unfairness” and that the Judge’s role does not preclude him or her from asking questions.8
[32] Likewise in Siemer v Stiassny, the Court of Appeal said:9
[38] Complaints of bias against a Judge are not common but are not unknown either. It sometimes happens that an unsuccessful litigant will attribute the outcome of the case to judicial bias rather than the view the Judge took of the merits. One of the problems with such a complaint is that there is usually no obvious reason why a Judge with no personal or financial link to the parties or outcome of the case should be biased. Given this, the most likely explanation for impugned judicial conduct is usually that it was a reaction to unmeritorious arguments or evidence.
[33] To conclude, I am not satisfied this ground of appeal is made out.
Failing to take into account all evidence resulting in an unreasonable verdict
[34] HarvestPro submits that the Judge:10
… erred in dismissing and failing to take into account evidence that was consistent with HarvestPro taking all practicable steps, in accordance with industry practice at the time, to ensure that Mr Henare was not harmed.
[35] HarvestPro’s case is that Mr Henare, as breaker-out in the chute, was not exposed to a hazard whilst Mr Ashford moved stems between the temporary position and the surge pile. That is because of the distance between the temporary position/surge pile and Mr Henare’s position on the slope. Whilst a stem might fall from that position on the landing, whether because it was dropped or because it failed to rest on the surge pile, it could not have been expected to fall in such a direction that it would hit Mr Henare working in the chute. HarvestPro also relied
on evidence that the industry conducted its operations in the same way.
7 E H Cochrane Ltd v Ministry of Transport [1987] 1 NZLR 146 (CA), (1987) 3 CRNZ 38.
8 At 154 and 155.
9 Siemer v Stiassny [2007] NZCA 117, [2008] 1 NZLR 150.
10 Appellant’s Synopsis of Submissions, above n 6, at [4.7].
[36] I do not consider that there is any substance in the submission that the Judge failed to take into account HarvestPro’s evidence on this issue. This is apparent from [10], [11] and [14] of the judgment:11
[10] In response to the allegations arising from this series of events, the defendant has maintained that it would be culpable if the log escaped via the chute, but not if it escaped via the surge pile as the preponderance of evidence now suggests. The essential reasoning is that the industry “widely and safely” allows work on surge piles while breaking out is occurring below. In the specific context of this case, however, that generalisation is hotly contested by the informant and its validity becomes the central issue.
[11] On a related topic there has been reference to code compliance. In my view, while code compliance or otherwise may inform the Court’s judgement, it is not the dominant consideration. The issue of forestry safety and codes governing the same is a rapidly evolving one. Yesterday’s best practice may not be tomorrow’s. The Court’s task is rather different – to form an objective view of matters of hazard and practicability, meanwhile assessing the evidence in light of the applicable onus and standard of proof – and again I remind myself of those.
[14] The evidence of Mr Prebble that these two actions [Mr Ashford moving logs to the surge pile while Mr Henare was on the landing below] should not have occurred at the same time is simply common sense applied. And the evidence of Associate Professor Visser that breaking out can co- exist with surge pile work is underpinned with the qualification that those above must know of the presence of those below and exercise the necessary steps to avoid escape of any item from the landing. In my view knowledge of just where is the person below is an important part of the judgement of just what standard of care is incumbent upon those above at any given time. To the extent that the views of Mr Prebble and Mr Visser disagree in this regard, I prefer and adopt those of Mr Prebble. They coincide, as I say, with common sense.
[37] I also accept the Respondent’s submission there was ample evidence on which the Judge could find that a hazard existed, which HarvestPro had failed to take all practicable steps to eliminate. For instance, Mr Prebble’s evidence was that there could be no certainty that a stem falling from the landing would travel down the slope within the confines of the area HarvestPro anticipated. Mr Prebble’s evidence was that a stem might change direction unexpectedly because it hit a stump or because the form of the land channelled it in a particular direction. Accordingly,
there could be no certainty as to where it might fall.12
11 Ministry of Business Innovation and Employment v HarvestPro New Zealand Ltd, above n 1, at
[10], [11] and [14].
12 Notes of Evidence at 256.
[38] This is not a case in which the Judge failed to have regard to evidence. It is a case in which the Judge had regard to evidence and rejected it.
[39] I dismiss the appeal against conviction.
Appeal against sentence
[40] On sentencing, the Judge ordered HarvestPro to pay reparation to Mr Henare of $40,000 and ordered HarvestPro to pay a fine of $80,000. HarvestPro appeals against both on the basis that they are manifestly excessive.
[41] It is common ground that an appeal against sentence is a general appeal proceeding by way of rehearing and that it proceeds on an “error principle”, that is there must be an error vitiating the exercise of the original sentencing discretion.13
[42] In determining the sentence for an offence committed pursuant to s 50(1)(a) HSE, the Court is required to apply s 51A(2) HSE which provides:
51A Sentencing criteria
…
(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 requirements of sections 35 and 40 of that Act relating to the financial capacity of the person to pay any fine or sentence of reparation imposed; and
(c) the degree of harm, if any, that has occurred; and
(d) the safety record of the person (which includes but is not limited to warnings and notices referred to in section 56C) to the extent that it shows whether any aggravating factor is absent; and
(e) whether the person has—
(i) pleaded guilty:
13 R v Shipton [2007] 2 NZLR 218 (CA) at [138]; Yorston v Police HC Auckland CRI-2010-404-
164, 14 September 2010.
(ii) shown remorse for the offence and any harm caused by the offence:
(iii) co-operated with the authorities in relation to the investigation and prosecution of the offence:
(iv) taken remedial action to prevent circumstances of the kind that led to the commission of the offence occurring in the future.
[43] In Department of Labour v Hanham & Philp Contractors Ltd, a full bench of the High Court gave guidance on sentencing under the HSE.14 The Judge referred to this decision in his sentencing notes, as appears below.
Reparation
[44] HarvestPro submits that the Court erred in two respects in fixing reparation. First, HarvestPro submits that the Judge failed to take into account the desirability of consistency in sentencing levels between similar offenders committing similar offences. Secondly, HarvestPro submits that the Judge failed to take into account an offer(s) of amends made to Mr Henare.15
[45] Counsel for the Respondent acknowledged that MBIE had submitted to the Judge that an award of $20,000 reparation would be reasonable. On appeal, however, the Respondent’s case was that the award of reparation was not manifestly excessive, and that the Judge had not erred in the respects submitted by HarvestPro.
[46] The purpose of an award of reparation is to compensate and to recompense an individual or family for loss, harm or damage resulting from the offending.16 In his Victim Impact Statement, Mr Henare said that he:
·had had to relocate from his place of residence due to ongoing medical and recovery needs;
14 Department of Labour v Hanham & Philp Contractors Ltd (2009) 9 NZELC 93,095, (2008) 6
NZELR 79 (CA).
15 Sentencing Act 2002, ss 8(e), 9(2)(f) and 10(1)(a).
16 Department of Labour v Hanham & Philp Contractors Ltd, above n 14, at [33].
· had received a fractured left leg, fractured left lower arm, “crush”
injuries to his liver and bruising and abrasions.
·had been bedridden in Gisborne Hospital for three weeks, with his arm and leg totally immobilised;
·had permanent steel rods implanted in his leg and steel plates in his arm;
· as at May 2014 had undergone six operations;
·has nerve damage and significant loss of feeling in his left hand and his fingers are fused in the knuckles;
·finds travelling in a car for lengthy periods painful and he tires quickly and has lost mobility; and
·has suffered and continues to suffer financial strain due to his loss of employment, causing friction and arguments between him and his partner.
[47] The passages of the Judge’s sentencing notes that are relevant to the award of reparation are:17
[17] In my view, the awards which have been referred to, some of greater age than others, are now due for substantial upward revision. For reasons soon to be stated, in my view, Mr Henare should be made an award higher than those to which reference has been made. He is a 30 year old family man who has suffered multiple fractures and weeks of hospitalisation. His victim statement refers in this regard. Despite six discrete surgical procedures he remains deprived of employment, sport and much of the enjoyment of life generally. Fortunately he is multi-talented but his options nevertheless are considerably narrowed.
…
[19] As I say comparison with other cases in most areas leads to difficulties. Levels of fine and reparation will obviously alter both as time
17 Ministry of Business Innovation and Employment v HarvestPro New Zealand Ltd, above n 2, at
[17], [19] and [20].
moves on and the objects of sentencing evolve. What the authorities have repeatedly emphasised is that awards in this class of case, whether by way of fine or reparation, should be fixed at more than what is referred to as “licence level” and should not be regarded as another unfortunate business expense.
[20] The award I am about to make recognises the lifelong consequences of this event, so far as Mr Henare is concerned. It recognises also the changing value of money now and in the future. I have no doubt that if Mr Henare had a choice between his previous health and the proposed award he would choose the former without hesitation. The award still remains little more than a token reparation for the harm that has been done and I fix compensation in this case at $40,000.
Consistency
[48] Counsel for HarvestPro submitted that the Judge failed to consider several authorities between 2006 and late 2013 in which awards of reparation did not exceed
$20,000. Two of particular relevance, because of the nature of the industry, are:
(a) Department of Labour v Morton Logging (2008) Ltd.18 In that case a trainee breaker-out sustained severe injuries after being struck by a log. The Court ordered reparation of $18,600; and
(b)Department of Labour v Thomas Logging Ltd, a chainsaw operator struck by a felled tree received reparation of $20,000.19
[49] Counsel for the Respondent submitted that the Judge did have regard to the authorities to which he was referred but, for the reasons the Judge gave, decided that a more substantial award was required. Counsel also submitted that the Judge’s decision was not, in fact, exceptional given other awards made by the Court at or about the same time, that is June 2014.
[50] Counsel referred me to The House Movers (Rotorua) Ltd v MBIE.20 In that case an employee fell from a roof and fractured his right fibula and tibula. In July
2013 the Court awarded reparation of $40,000. In June 2014 the Judge in Ministry
of Business Innovation and Employment v Abbas Ltd awarded reparation of
18 Department of Labour v Morton Logging (2008) Ltd DC Kaitaia CRI-2013-029-668, 28
November 2013.
19 Department of Labour v Thomas Logging Ltd DC Greymouth CRI-2011-058-316, 5 July 2011.
20 The House Movers (Rotorua) Ltd v MBIE [2014] NZHC 1208.
$40,000.21 Two further decisions have come to my attention. The first is Department of Labour v Eziform Roofing Products Ltd, in which the Court ordered reparation of $40,000 in September 2012, for an employee who had fallen more than five metres onto concrete and injured himself severely.22 In the second, Worksafe New Zealand v Hunter Laminates Nelson Ltd, an employee received multiple fractures to his leg from a dropped timber beam. In that case, in October 2014, the Court ordered reparation of $35,000.23
[51] Taking these decisions into account, I am not satisfied that the Judge’s award
was inconsistent.
Offer(s) of amends
[52] Counsel submits that the Judge erred in failing to take into account offers of assistance that HarvestPro had made to Mr Henare. These offers were said to be funding a temporary gym membership; a weekend’s accommodation for Mr Henare and his partner in Auckland and the use of a HarvestPro vehicle to drive there; and employment. Also, following conviction, HarvestPro offered to pay reparation to Mr Henare of $20,000. Mr Henare rejected the offer and as at the date of the appeal nothing had been paid.
[53] Counsel for the Respondent was dismissive of these offers and particularly of the offer of employment. Counsel told me this was for a job on a logging gang, which Mr Henare was incapable of performing.
[54] I do not know where the truth lies in terms of the nature of employment offered to Mr Henare. I do accept, however, that the Judge did not reduce the award of reparation to reflect any assistance that may have been offered. Any reduction for the assistance said to have been offered would be trifling and the failure to reduce for
such offers would not render the final award manifestly excessive.
21 Ministry of Business Innovation and Employment v Abbas Ltd DC Auckland CRI-13070201970,
4 June 2014.
22 Department of Labour v Eziform Roofing Products Ltd [2013] NZHC 1526 at [52].
23 WorkSafe New Zealand v Hunter Laminates Nelson Ltd DC Nelson CRI 2014-042-0957,
1 October 2014.
Fine
[55] The Judge adopted a starting point of $80,000 and declined to allow any discount for mitigating factors. HarvestPro submits that starting point was too high and that the Judge erred in refusing a discount.
[56] The Judge referred to Hanham and held that HarvestPro’s level of culpability put it at the upper end of the “medium” band identified in Hanham. The Judge accepted the submission for MBIE that the appropriate starting point was $80,000.
[57] HarvestPro submits that its level of culpability was such that the starting point ought to have been on the cusp of the low and medium bands and so should have been $50,000. Counsel submits that in assessing culpability the Judge failed to identify the practicable steps that HarvestPro could have been expected to take and failed to take into account that HarvestPro was acting in accordance with standards and methods prevailing in the forestry industry at the time.
[58] These submissions do not take account of the fact that the Judge had heard three days of evidence regarding HarvestPro’s and industry practice. In his decision on liability the Judge identified communication as the practicable step required to ensure that Mr Henare was safe whilst Mr Ashford was shifting logs on the landing. Moreover, the Judge was not satisfied that industry practice was as HarvestPro maintained (a matter on which the expert evidence was divided) or, if it were, that industry practice constituted a justification for the manner in which HarvestPro conducted its operations. In my view the Judge was well placed, and correct, to assess HarvestPro’s culpability as he did.
[59] Again, if one has regard to cases decided contemporaneously, it is apparent the Judge’s starting point was within the appropriate range. For instance, in Hunter Laminates Nelson Ltd, the Judge adopted a starting point of $105,000.24 In Abbas
Ltd, the Court adopted a starting point of $75,000.25 In The House Movers (Rotorua)
Ltd, the High Court held that the starting point should be $40,000.26 In Eziform
24 WorkSafe New Zealand v Hunter Laminates Nelson Ltd, above n 23.
25 Ministry of Business Innovation and Employment v Abbas Ltd, above n 21.
26 The House Movers (Rotorua) Ltd v MBIE, above n 20.
Roofing Products Ltd, on appeal this Court adopted a starting point of $85,000.27 In Thomas Logging Ltd,28 the Court adopted a starting point of $60,000 and in Morton Logging (2008) Ltd the Court adopted a starting point of $80,000.29
[60] In the present case HarvestPro had identified the risk that a stem might fall from the landing, but not that a person in the chute might get hit. It appears to have relied on an assessment of where a one tonne log falling down a hill might be expected to travel, without regard to the risk that it would not go where expected and without regard to the severe injury that would inevitably result if it hit someone. I repeat that Mr Henare was lucky to escape with his life.
[61] As the Court said in Hanham:30
[56] As to the level of fines, we can do no better than endorse the comments of Duffy J in Street Smart at [59]:
Workplace accidents are a cost to and burden on the community. The effect of accident compensation and the inability to sue for injuries suffered as a result of employers’ carelessness means that the community carries the cost of those injuries. The principles in s 7(a), (b) (e) (f) and (g) of the Sentencing Act are especially important and applicable here. The seriousness with which Parliament views this type of offending can be seen from the fivefold increase in the 2003 amendment in the amount of the maximum fine. The clear purpose of the Act, as was recognised in Areva at [39], is “to promote and enforce workplace safety”. There are good policy reasons, which accord with the purpose and scheme of the Health and Safety in Employment Act, for ensuring that where employers infringe, penalties must bite, and not be at a “licence fee” level.
[62] HarvestPro also refers to the Judge’s failure to reduce the starting point for mitigating factors being its co-operation with MBIE after the accident; remorse; remedial actions taken by HarvestPro; and HarvestPro’s safety record.31
[63] In regards to these matters the Judge said:32
[22] So far as mitigating factors are concerned, I detect none of sufficient significant to require an adjustment. There has been no guilty plea. Any claim to co-operation with the authorities throughout the proceedings is
27 Department of Labour v Eziform Roofing Products Ltd, above n 22.
28 Department of Labour v Thomas Logging Ltd, above n 19.
29 Department of Labour v Morton Logging (2008) Ltd, above n 18.
30 Department of Labour v Hanham & Philp Contractors Ltd, above n 14, at [56].
31 Health and Safety in Employment Act 1992, s 51A(d)(e)(iii).
32 Ministry of Business Innovation and Employment v HarvestPro New Zealand Ltd, above n 2, at
[22] and [23].
seriously compromised by the use which the defendant has made of its employee Mr [Paulson] in evidence. The same can be said for any claim to remorse. To the extent that there has been remedial action it does no more than respond to what was an obvious hazard and any claim to a strong safety record is nullified by evidence of previous mishaps fortunately inconsequential.
[23] I decline to make the minor discount contemplated by the informant. Offers of amends when placed under the microscope are not what they might appear to be in the defendant’s sentencing submissions. It seems that the proposed voluntary contribution to compensation first saw the light of day somewhere between the entry of a conviction and the defendant’s sentencing memorandum dated just three days ago. Such an offer would have been considerably more persuasive if it was tendered together with a guilty plea at an early stage.
[64] I believe the Judge’s reference in [22] above to Mr Paulson concerns Mr Paulson’s attempts in evidence to resile from the acknowledgment of failings contained in the accident report.
[65] Counsel for the Respondent submitted that the Judge was correct to say that HarvestPro had not cooperated with the prosecution. Nor did counsel accept that HarvestPro’s conduct evidenced remorse for its offence. Counsel referred me to the fact that HarvestPro was still citing Associate Professor Visser’s evidence to the Judge, as evidence justifying its methods on site, even though the Judge had made it plain he did not accept that evidence. Counsel submitted that HarvestPro wished to “have it both ways”. Defend the charge and then seek to minimise its failings but still seek a discount for remorse.
[66] For myself, I am not satisfied that the Judge erred in failing to reduce the starting point on account of these matters or that, even if he did err, that the failure to reduce resulted in an end fine that was manifestly excessive.
Proportionality
[67] The third step required by Hanham is an assessment of whether the overall burden of reparation and fine is proportionate and appropriate to the circumstances of the offending and the offender. This assessment is to be made against the
background of the statutory purposes and principles of sentencing.33
33 Department of Labour v Hanham & Philp Contractors Ltd, above n 14, at [78].
[68] Counsel did not refer me to any authorities on this particular point but the effect of HarvestPro’s submissions was that, combined, reparation and fine would give an overall burden of $62,500 to $65,000 as opposed to the $120,000 imposed by the Judge. I have considered at length whether a payment of that amount is disproportionate in the sense referred to but have decided that it is not. This was a serious lapse, with serious consequences and Mr Henare’s life was put at risk.
Result
[69] I dismiss this appeal as to conviction and sentence.
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M Peters J
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