R v Bishop
[2016] NZHC 494
•22 March 2016
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CRI-2015-039-000072 [2016] NZHC 494
THE QUEEN
v
RODNEY STEPHEN BISHOP STEELCON CONSTRUCTION LIMITED
Hearing: 22 March 2016 Appearances:
R G Douch for Informant
J P Temm for DefendantsJudgment:
22 March 2016
SENTENCING NOTES OF GILBERT J
R v BISHOP [2016] NZHC 494 [22 March 2016]
Introduction
[1] Mr Bishop, you and your company, Steelcon Construction Ltd, appear for sentence having each pleaded guilty to an offence against s 6 of the Health and Safety in Employment Act 1992. These offences arise out of the tragic death of a company employee, Michael Haines, on 27 May 2014. Mr Haines was killed when the face of a four metre excavation that you were working on with a digger, collapsed on top of him.
[2] The offence to which Steelcon Construction has pleaded guilty, is failing to take all practicable steps to ensure that Mr Haines was not exposed to the hazard of trench collapse while at work. The maximum penalty for this offence is a fine not exceeding $250,000.
[3] The offence to which you have pleaded guilty is that, as a director of Steelcon Construction you failed to take all practicable steps to ensure that Mr Haines was not exposed to the hazard of trench collapse knowing that failure to take such steps was reasonably likely to cause him serious harm. The maximum penalty for this offence is two years’ imprisonment, a fine of not more than
$500,000, or both.
The facts
[4] The facts are set out in the agreed summary of facts. Steelcon Construction is a company that formerly operated in the agricultural sector installing effluent management systems and tanks, farm underpasses, bridges, feed bunkers and feed pads. You are the managing director of the company and were responsible for all on- site activities undertaken by the company and its employees.
[5] Mr Haines, who was 34 years of age at the time of his death, had been employed by the company as a construction labourer since June 2011.
[6] At the time of the accident, you and Mr Haines were working on a farm near Matamata installing a 3.6 metre diameter concrete effluent transfer tank which was to be connected by a pipe to an existing system. You excavated a four metre deep
hole to accommodate the tank which was then set in position. The hole was partially backfilled but the area adjacent to the outlet of the concrete tank was left open at its original depth to enable it to be connected to the existing system with a new pipe. You returned the following week to dig a trench for this pipe. You commenced digging the trench to a depth of four metres using an excavator with a 600 millimetre wide bucket. After digging the initial section, you got down from the excavator to get the first length of pipe for installation. It was then that you then saw part of the excavated wall starting to crack while Mr Haines was in the hole clearing dirt away with a long-handled shovel. You yelled out to warn him but he was unable to get clear. The face of the excavation adjacent to the trench collapsed burying him under five cubic metres of soil with an estimated weight of eight tonnes. Despite valiant efforts by you and others to rescue him, Mr Haines could not be saved.
[7] Subsequent investigation by a geotechnical engineer revealed that the excavation was mostly through silty fill which had been placed in layers but not in an engineered manner. He reports that silts typically have low residual strength, lose cohesion when excavated and therefore perform poorly in unsupported excavations. He states that they are very susceptible to collapse with little or no warning, particularly if moist. These were the conditions that existed on 27 May 2014; there had been heavy rain over the preceding weekend, after the initial work was completed.
[8] The summary of facts records that the following practicable steps could and
should have been taken to ensure Mr Haines’ safety:
(a) Ensuring that a geotechnical inspection of the site was obtained to ascertain the cohesion and stability of the soil before commencing excavation.
(b)Ensuring that adequate precautions were taken against trench face collapse, such as shoring, installing trench seals or battering.
Victim impact statements
[9] Mr Haines is survived by his wife, five children, two younger siblings and his parents. As you would expect, and as is clear from reading the victim impact statements, Mr Haines’ death has had, and will continue to have, a devastating effect on all of their lives. Mr Haines was a much loved member of a close-knit family and his wife and children depended on him for financial and emotional support. Nothing can be done today to assuage their loss.
Sentencing approach
[10] In sentencing you, I must have regard to the purposes and principles of sentencing set out in the Sentencing Act 2002. These include the need to denounce your conduct, hold you accountable for the harm done by the offending, to promote in you a sense of responsibility for that harm and to provide for the interests of the victims. The sentence must also be sufficient to deter others from offending in a similar way in future.
[11] Sentencing for this type of offence involves a three step process. The first step is to assess the amount of reparation that should be paid. The second step is to determine the appropriate penalty. The third step is to ensure that the orders overall are proportionate to the offending having regard to your personal circumstances and those of the company. I must also determine the appropriate apportionment of the reparation and penalty between you and the company as part of this step.
Reparation
[12] Section 32 of the Act provides that a sentence of reparation may be imposed where a victim has suffered loss of or damage to property or emotional harm as a result of the offence. Loss or damage consequential on any emotional or physical harm or loss of or damage to property may also be compensated.
[13] The offending in this case did not cause the victims to suffer loss of or damage to property. However, it did cause considerable emotional harm and loss consequential on physical harm. It is obviously not possible to compensate for the
emotional harm caused by the loss of a loved one by paying money. The best the Court can do is to fix an amount that is consistent with the sums awarded in broadly comparable cases to compensate for the anguish, distress and mental suffering caused.
[14] The cases to which I have been referred indicate that reparation orders in cases under the Act resulting in fatalities typically range from $75,000 to $110,000, depending on the circumstances. Mr Douch has referred me today to a very recent decision of Judge Menzies in the District Court in which reparation in the sum of
$125,000 was ordered.
[15] Mr Haines left five dependent children who were aged between five and a half months and 16 years at the time of his death. Mr Haines’ widow has recurring nightmares from which she awakes, unable to move and feeling as though she is covered in dirt. Even digging in her garden provokes terrible nightmares. She is having to cope with the emotional strain of caring for the five children, all of whom are struggling to cope with their father’s death. The circumstances are detailed in the victim impact statements and the reparation reports. Mrs Haines has asked for the details to be suppressed and accordingly I do not detail them here. However, I am satisfied that she has suffered, and will continue to suffer, significant emotional harm as result of the sudden and tragic death of her husband.
[16] Having carefully considered the victim impact statements, the reparation reports that have been prepared and the comparable authorities, I consider that reparation for the emotional harm suffered by Mrs Haines should be fixed in the sum of $90,000. To their credit, the statutory liability insurers of Steelcon Construction have already paid the sum of $80,000 to her in recognition of that harm on a voluntary basis.
[17] Mr Temm does not resist Mrs Haines’ separate claim for reparation for
financial loss in the sum of $7,000.
[18] Mr Haines’ parents are also victims and they too have suffered emotional
harm and financial loss. Based on the reparation report, I assess the compensation
for emotional harm at $10,000. They have also suffered financial loss in the sum of
$4,320 and an additional award of reparation to compensate for that is not contested.
[19] Mr Haines’ daughter, Heaven, is in a separate category of victim. She is Mr Haines’ daughter from a previous union. Mr Temm accepts on the evidence that she is also entitled to compensation for the emotional harm she has suffered. Based on the reparation report, I fix this in the sum of $10,000. Because Heaven is
15 years of age, this sum is to be held in trust for her until she reaches the age of 18. It has been agreed that Mr and Mrs Haines senior should hold these monies as trustees in the interim.
Fine – Steelcon Construction
[20] In fixing the appropriate starting point, I take the following factors into account:
(a) It was well known in the industry that a vertical unsupported excavation to a depth of four metres through wet silty fill carried a high risk of collapse.
(b)The effective means of avoiding or mitigating this risk were also well known.
(c) The risk of serious harm, including death, if these means were not employed, should have been obvious.
[21] In making these observations, it is appropriate to refer to regulation 24 of the Health and Safety in Employment Regulations 1995 which deals with excavations where the face is more than 1.5 metres high. Regulation 24 relevantly provides:
Excavations with face more than 1.5 metres high
(1) Subject to subclause (2), every employer shall take all practicable steps to ensure that, where any face of any excavation is more than
1.5 metres high, that face is shored.
(2) Subclause (1) does not apply where –
(a) the face is cut back to a safe slope; or
(b) the material in the face is of proven good standing quality under all reasonably foreseeable conditions of work and weather; or
(c) by reason of the nature of the work and the position of any employee in the vicinity, there is no danger to any employee; or
(d) the provision of shoring is impracticable or unreasonable by reason of the nature of the work and the employer takes all practicable steps to ensure that other precautions are taken to make the face as safe as possible in the circumstances.
[22] It is also pertinent to note that earlier that same month, you excavated a trench in excess of 1.5 metres deep on another site without shoring or battering the sides. A foreman from another construction company who was working on that site warned you of the safety risks involved in failing to take these steps. You ignored that advice.
[23] Although not referred to in the summary of facts, you state that there was a “toolbox” meeting at Steelcon Construction’s premises and again onsite before work commenced when it was agreed that no one was to enter the trench. Mr Temm’s instructions are that you did not see Mr Haines enter the excavation and he was not supposed to do so. However, you and the company have pleaded guilty to the charges on the basis of the agreed summary of facts which records the practicable steps that you failed to take. I have to sentence you on that basis. These were failing to obtain a geotechnical site inspection to ascertain the stability of the soil before commencing the excavation and failing to take adequate steps to prevent the face of the excavation from collapsing by shoring, battering or otherwise. Further, your statement that no one was to enter the excavation does not sit well with the photograph showing paint markings at the bottom where the tank was to be located. As the person carrying out the excavation and supervising the works, you must have seen those paint markings, if not approved their placement by one of the company’s employees. You were also working in close proximity to Mr Haines and saw him at the bottom of the excavation immediately before the collapse occurred. It was your responsibility to ensure that he did not enter the excavated site, thereby endangering his safety.
[24] In all of the circumstances, I accept Mr Douch’s submission that your culpability falls at the lower end of the high band referred to by the Full Court in Department of Labour v Hanham & Philp Contractors Ltd.1 I consider that a starting point fine of $100,000 would be appropriate for the company.
[25] A modest discount should be allowed to recognise the responsible approach taken by the company in arranging statutory liability insurance to provide cover for its employees in the case of accidents such as occurred here. The Full Court in Hanham considered that an appropriate discount would be between 10 and 15 per cent.
[26] Credit should also be given for the company’s prior good safety record and lack of previous convictions. I note that the company’s assets have been sold and it is no longer trading. Accordingly, the prospects of future offending are very low.
[27] Allowing for these factors, the adjusted starting point would be of the order of $75,000. The company is also entitled to a further discount to reflect the early guilty plea. I agree with Mr Temm that the company pleaded guilty at the first available opportunity in the circumstances and that the full 25 per cent discount should be allowed. This results in a fine of $56,000.
[28] I consider that the end sentence requiring reparation in the sums ordered, which will be met by insurance, and a fine of $56,000, is proportionate to the company’s culpability given all of the circumstances. While the company has sold its assets and is no longer trading, I am not persuaded that it would be appropriate to reduce the fine to take account of the fact that it now appears to have no assets or income. The company appears to have been a profitable business and its assets were able to be realised for a substantial sum, in excess of $500,000.
Mr Bishop
[29] I turn now to the penalty to be imposed on you Mr Bishop.
1 Department of Labour v Hanham & Philp Contractors Ltd HC Christchurch CRI 2008-409-
000002 [18 December 2008].
[30] Since the accident, you have separated from your wife. You now live in rented accommodation and work as a contract truck driver. I am advised that you have no means to pay an appropriate fine or reparation order. In these circumstances, both counsel submit that the Court should consider a community based sentence. Mr Douch submits that a short sentence of home detention should be imposed. Mr Temm submits that this would be a harsh sentencing response and that a sentence of community detention would be appropriate.
[31] Taking all matters into account, including the increased penalties under s 49 for the offending of which you have been convicted, I consider that the appropriate starting point in your case would be of the order of 12 months’ imprisonment. This would need to be adjusted for your prior good record and your guilty plea. This would reduce your end sentence to eight months’ imprisonment.
[32] Having regard to your high level of culpability and the extent of harm caused, I am not satisfied that a sentence of community detention would be a sufficient response. In my view, the least restrictive outcome appropriate in all the circumstances of this case would be a short sentence of home detention which I fix at four months.
Sentence
[33] Mr Bishop, would you please stand. You are sentenced to four months’ home detention. This sentence is to be served at 62C Campbell Street, Frankton, Hamilton. You are to travel directly from the Court to that address to await the arrival of a probation officer or a security guard.
[34] Steelcon Construction Ltd is ordered to pay total reparation as follows:
(a) To Mrs Haines, the widow, the total sum of $97,000. This includes the sum of $80,000 already paid.
(b) To Mr Haines’ parents the total sum of $14,320.
(c) To Mr Haines’ daughter, Heaven, the sum of $10,000. This is to be paid to Mr and Mrs Haines senior to be held by them in trust for Heaven until she attains the age of 18 years.
[35] Steelcon Construction Ltd is fined the sum of $56,000.
[36] Charges 1, 2, 4 and 6 in the Crown charge notice are withdrawn by leave. [37] You may stand down.
M A Gilbert J
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