Lal v Worksafe New Zealand
[2019] NZHC 3336
•16 December 2019
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2019-404-424
[2019] NZHC 3336
BETWEEN DEEPAK YOGESH LAL
Appellant
AND
WORKSAFE NEW ZEALAND
Respondent
Date of hearing: 16 December 2019 Appearances:
J N Bioletti for the appellant
R C Woods and A J Simpson for the respondent
Date of judgment:
16 December 2019
ORAL JUDGMENT OF JAGOSE J
Solicitors/Counsel:
Jeremy Bioletti Barrister, Auckland Robertsons, Auckland
WorkSafe New Zealand, Auckland
LAL v WORKSAFE NEW ZEALAND [2019] NZHC 3336 [16 December 2019]
[1] Deepak Lal appeals his sentence of 10 months’ home detention, imposed by Judge D J Harvey in the District Court at Manukau on 29 August 2019,1 following Mr Lal’s guilty plea to two charges of using forged documents to obtain pecuniary advantage.2 Mr Lal pleaded guilty to the two charges following the Judge’s earlier sentence indication.3
Background
—offending
[2] Mr Lal was employed by a company which stores and distributes hazardous substances. Mr Lal was responsible for receipt and distribution of such substances. He had attended some relevant training courses for handling hazardous substances.
[3] The Health and Safety at Work (Hazardous Substances) Regulations 2017 (the “Regulations”) came into effect on 1 December 2017. Under the Regulations, work requiring handling of hazardous substances, such as that carried out by Mr Lal, could only be carried out by a person holding a compliance certificate as a certified handler.4
[4] Mr Lal provided his employer with a compliance certificate in November 2017. It had been duplicated from that of a fellow employee. When it appeared not to list the correct certification for Mr Lal’s employment, and Mr Lal accordingly was required by WorkSafe to be supervised in his employment, he supplied another in December 2017, also duplicated.
[5] WorkSafe interviewed Mr Lal on 14 February 2018. Mr Lal admitted he had altered the certificates of two fellow employees. He had done so because he felt pressure from his manager to complete the required courses. But they were no longer available to him online or after the Regulations’ commencement.
1 WorkSafe New Zealand v Lal [2019] NZDC 21884.
2 Crimes Act 1961, s 257(1)(a). Maximum penalty is 10 years’ imprisonment.
3 Worksafe New Zealand v Lal DC Manukau CRI-2019-092-001204, 19 July 2019.
4 Health and Safety at Work (Hazardous Substances) Regulations 2017, cl 4.1(1).
—District Court decision(s)
[6] On 19 July 2019, Judge Harvey delivered a sentence indication. He did not stray far from that indication in sentencing Mr Lal.
[7] The Judge considered “there were a number of aggravating circumstances” to Mr Lal’s offending: the health and safety implications of Mr Lal handling and distributing hazardous substances on false certification;5 and the continued deceit and breach of trust – even to the point of “aspects of corrupt practice” in his employment
– in continuing to mislead his employer.6
[8] In light of case law,7 the Judge adopted a starting point of between 32–33 months, significantly higher than the 20–24 months sought by the prosecutor, discounted by 25 per cent for Mr Lal’s guilty plea to between 24 and 25 months’ imprisonment. The Judge considered Mr Lal’s personal circumstances and counsel’s suggestion a sentence of community detention was appropriate. But the Judge held a deterrent sentence was needed, as: 8
… people who are tempted to forge certificates relating to health and safety requirements must be aware … they will be visited with severe consequences. The integrity of the health and safety system and the certification system is too important to do otherwise.
[9] The Judge imposed an end sentence of 10 months’ home detention. While mindful of the impact such a sentence would have on Mr Lal’s employment, the Judge considered home detention justified in all the circumstances.
Approach to appeals against sentence
[10] I must allow the appeal only if I am satisfied there is an error in the sentence, and a different sentence should be imposed.9 In any other case, I must dismiss the appeal.10 The approach previously taken by courts on sentencing appeals continues to
5 WorkSafe New Zealand v Lal, above n 1, at [3].
6 Worksafe New Zealand v Lal, above n 1, at [3].
7 The Judge referred to the following decisions: “Wong, Roberts and Singh” and cited R v Siddiqui
[2017] NZDC 21603.
8 Worksafe New Zealand v Lal, above n 1, at [7].
9 Criminal Procedure Act 2011, s 250(2).
10 Section 250(3).
apply,11 so that the measure of error is the sentence be “manifestly excessive” – a principle “well-engrained” in this Court’s approach to sentence appeals.12 I will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether ‘manifestly excessive’ is to be assessed in terms of the sentence given, rather than the process by which it is reached.13
Issues on appeal
[11] Mr Lal’s notice of appeal lists a sole ground of appeal: “the sentence is wrong in principle as rehabilitation was not given enough weight”. But in his submissions, Mr Lal’s counsel, Jeremy Bioletti, says:
(a)insufficient weight was placed on the fact Mr Lal had in fact completed relevant training through another certifying agency (albeit without obtaining the required certificates);
(b)more weight should have been given to Mr Lal’s personal circumstances; and
(c)the offending was not sufficiently serious to attract a “purely deterrent” sentence.
Discussion
[12] Mr Bioletti says Mr Lal had, through another certifying agency, completed requisite training. Certification was not required by his employer at the time he undertook this training. Mr Bioletti says this ameliorates the health and safety implications of Mr Lal’s offending, as he was not without some awareness of appropriate methods of working with hazardous substances.
[13] The training completed by Mr Lal through the other certifying agency is stipulated as an approved handler test certificate being for Mr Lal having met relevant requirements in accordance with the regulations for LPG class 2.1.1A. This relates
11 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].
12 At [33] and [35].
13 Ripia v R [2011] NZCA 101 at [15].
only to one class of substance whereas Mr Lal’s requirement was to attend an ‘Approved Handler Course’ involving several different classes of substances. The certificate was issued on 21 January 2016. It does not appear to have met the requirements of his employment, which appear to have been across more classes of substance.
[14] In any event, under the Regulations, Mr Lal could only carry out his work if he held a compliance certificate as a certified handler.14 Before a compliance certificate can be issued, a compliance certifier must be satisfied the handler meets certain competency requirements, detailed in cl 4.3 of the Regulations.15 While a “written record is sufficient evidence on which a compliance certifier may decide whether to issue or renew a compliance certificate”, the record must be signed by the provider of a course and must describe the “method used to assess a person’s knowledge and practical skills and the results of that assessment”.16 There is no evidence Mr Lal attempted to provide the compliance certifier with the written record of his previous experience.17
[15] Similarly, Mr Lal’s employer may not have required to provide him with relevant training and instruction if his previous experience or training has resulted in training equivalent to that required under the Act, unless the employer considered “refresher training to be necessary”.18 In requesting Mr Lal to complete the online modules, it appears his employer did not think the previous training was adequate to meet the requirements under the Regulations. Regardless of the extent of Mr Lal’s previous training, neither he nor his employer demonstrated such was sufficient to meet the requirements under the Regulations.
[16] While Mr Lal’s previous training may to some extent have ameliorated the health and safety repercussions of his offending, he did not have a legitimate
14 Health and Safety at Work (Hazardous Substances) Regulations 2017, cl 4.1.
15 Clause 4.2(4).
16 Clause 4.3(3).
17 The Regulations’ transitional provisions provide at sch 1, cl 3: “A test certificate (including a conditional test certificate for a hazardous substance location) in force immediately before the commencement date) continues in force on and after that date for the balance of the period (if any) for which it was issued).” Whatever Mr Lal’s previous certificate was, it seems not to have been sufficient for present compliance.
18 Clause 4.5(6).
compliance certificate as a certified handler. If he had continued to work without a compliance certificate, he would have been in breach of health and safety legislation.19 The purpose of that legislation is, in part, to ensure “appropriate scrutiny and review of actions taken by persons performing functions or exercising powers” under the Act, and to “secure compliance … through effective and appropriate compliance and enforcement measures”.20 Mr Lal actively deceived his employer by forging the two certificates representing he had completed the required training. It would not have been appropriate for the Judge to give credit for Mr Lal’s previous training, even if that was an adequate substitute for that which he was required now to obtain.
[17] The Judge considered Mr Lal’s personal circumstances in some depth.21 His lack of previous convictions was noted. He then was employed by a different company. He has certain familial pressures and difficulties. Two character references have been supplied which speak highly of him. None appears material to either his offending or sentence. In imposing a sentence of home detention, the Judge was mindful of the impact on Mr Lal’s employment.22 As he acknowledged, arrangements can be made for Mr Lal to work while subject to his sentence of home detention.23 The Judge’s larger than usual reduction of time in conversion from imprisonment to home detention may reflect Mr Lal’s personal circumstances, but I cannot see they justify any discrete discount.
[18] The maximum penalty for use of a forged document is ten years’ imprisonment.24 Neither counsel cite comparable cases against which to compare Mr Lal’s offending. As this Court has noted, there is a “a surprising dearth of accessible precedents on sentencing for this offence”.25 The Judge referred to several decisions, but the only decision cited was R v Siddiqui, which involved far worse offending and a starting point of four and a half years’ imprisonment.26 Mr Lal’s
19 Health and Safety at Work Act 2015, s 206(1).
20 Sections 3(1)(e) and (f).
21 WorkSafe New Zealand v Lal, above n 1, at [6].
22 At [8].
23 Sentencing Act 2002, s 80C(3)(c)(ii).
24 Crimes Act 1961, s 257.
25 Burgess v Police [2017] NZHC 393 at [30]. Dunningham J suggested the use of forged banknotes on a minor scale would warrant a starting point of somewhere between non-custodial options to a sentence of one year’s imprisonment.
26 R v Siddiqui, above n 7.
offending is also somewhat different to most cases involving the use of forged documents, given its lack of direct pecuniary gain (although retention of paid employment in certified roles qualifies).
[19] The Court of Appeal in R v Varjan set out principles for assessing culpability in fraud-related cases:27
Culpability is to be assessed by reference to the circumstances and such factors as the nature of the offending, its magnitude and sophistication; the type, circumstances and number of the victims; the motivation for the offending; the amounts involved; the losses; the period over which the offending occurred; the seriousness of breaches of trust involved; and the impact on victims.
[20] In Tonks v Police, a starting point of 16 months’ imprisonment was held “well within range” for one charge of using a forged document to obtain a pecuniary advantage.28 In Alofa v Police, a starting point of 22 months’ imprisonment on two charges of using a document for pecuniary advantage and one of using a forged document was held “unimpeachable”.29 In Hendrick v R, a starting point of three years was upheld on seven counts of reproducing a document with intent to cause loss.30
[21] Mr Lal’s offending falls somewhere within those authorities. It involved falsifying certification, required to conduct regulated activities. Mr Lal also was convicted on two charges, the second of which involved significant deceit. In saying the certifying agency had made a mistake in relation to the first false certificate, and manipulating yet another certificate, Mr Lal was flagrantly dishonest. His motivation to satisfy his manager, and to retain his employment, does not justify such duplicity, which was to permit him to continue to conduct regulated activities in breach of statute. The regulatory context uplifts it from the 20-month starting point I approved in Singh v Police.31 Regulatory fraud carries its own requirements for denunciation and deterrence.32
27 R v Varjan CA97/03, 26 June 2003 at [22]; cited in McGregor v R [2015] NZCA 565 at [13].
28 Tonks v Police [2017] NZHC 880 at [10].
29 Alofa v Police [2018] NZHC 3156 at [13].
30 Hendrick v R [2016] NZCA 92. Reproducing a document with intent to cause loss is punishable by a maximum penalty of 10 years’ imprisonment, the same as that under s 257(1)(a).
31 Singh v Police [2019] NZHC 3001.
32 Ismail v R [2011] NZCA 444 at [15].
[22] Mr Lal’s offending had a measure of sophistication about it, as even issuing agency initially believed the certificate genuine. It involved a serious breach of his employer’s trust. It was aimed at avoiding health and safety objectives, which by their nature are to be taken seriously and depend for their integrity on a unitary whole. While the offending was discovered before any consequences arose, they could have been catastrophic for Mr Lal, his employer, and anyone else for whose benefit his activities were regulated. As against all that, there were no immediate consequences of Mr Lal’s lack of certification, except for his supervised employment.
[23] In my view, a starting point of 24–26 months’ imprisonment would be appropriate. His offending was serious enough to be on the cusp of a short-term sentence. The Judge’s starting point of 32–33 months’ imprisonment is too stern. Applying a discount of 25 per cent for Mr Lal’s guilty plea brings the sentence to 18– 20 months’ imprisonment. Generally, home detention is for half the prison sentence that would otherwise have been imposed,33 but this is not so much an exact guideline,34 as a general ‘rule of thumb’.35 The Judge adjusted Mr Lal’s sentence to be about 60 per cent less than the sentence of imprisonment that would otherwise have been imposed, to his end sentence of ten months’ imprisonment. Half my sentence would have Mr Lal’s end sentence at nine to ten months’ home detention. In light of that minimal difference, the end sentence cannot be considered manifestly excessive.
[24] While the Judge’s starting point was too high, the Judge did not err in imposing an end sentence of 10 months’ home detention.
Result
[25]The appeal is dismissed.
—Jagose J
33 Nisbet v R [2017] NZCA 476 at [22].
34 R v Bisschop [2008] NZCA 229 at [18]–[19].
35 Simon France (ed) Adams on Criminal Law – Sentencing (online looseleaf ed, Thomson Reuters) at [SA80A.06].
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