[2] On 25 July 2023, Judge Ruth sentenced the appellant,1 Mr Steven Sullivan, to 20 months’ imprisonment for attempting to pervert the course of justice.2 The maximum penalty for this offence is seven years’ imprisonment.

[3] The main issues in the appeal relate to the level of the discounts allowed by the Judge and whether the term of imprisonment should have been commuted to home detention.

1 R v Sullivan [2023] NZDC 15433 [decision on appeal].
2 Crimes Act 1961, s 177(e).

SULLIVAN v R [2023] NZHC 2453 [4 September 2023]

[4] The offending was related to a workplace incident at a company, Aimex Ltd (Aimex). The appellant was the managing director and holds one third of the shares. After the incident, the appellant became aware of the creation and destruction of a relevant damning incident report relating to a previous incident five days earlier. Aimex ultimately pleaded guilty to a charge under the Health and Safety at Work Act 2015 and Health and Safety at Work (Hazardous Substances) Regulations 2017. With the intention of reducing the level of fine that was imposed on Aimex, the appellant deliberately and successfully misled WorkSafe investigators and the Court sentencing Aimex, resulting in an undoubtedly smaller penalty being imposed.

[5] The appellant appeals his sentence on the basis it is manifestly excessive. The appellant says the Judge provided manifestly inadequate reductions to the starting point and erred in imposing a sentence of imprisonment rather than home detention. The Crown opposes the appeal. It says the sentence imposed was not manifestly excessive, that the discounts were within range and balanced by a low starting point. It says a sentence of imprisonment was the only appropriate response to the offending and was the appropriate outcome.

[6] The appellant initially sought leave to adduce fresh evidence on appeal from the other two directors of Aimex. However, due to a change in the appellant’s employment circumstances, that is no longer sought.

The offending

[7] The appellant was the managing director, founding member and one-third owner of Aimex Ltd, a marine and industrial engineering company.

[8] On 29 July 2019, the victim, an employee of Aimex, was cleaning an engine within the confines of a boat hull using a brake cleaning solvent when he was overcome with fumes from the brake cleaner. He passed out and remained in the boat hull until he was found. The victim suffered a hypoxic brain injury and continues to suffer the effects of that injury. It is suggested he may continue to do so for the rest of his life.

[9]WorkSafe investigated the workplace incident.

[10] Five…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Sullivan v The King

Details

AGLC: Sullivan v The King [2023] NZHC 2453
Case: [2023] NZHC 2453
Decision Date: 4 September 2023

CaseChat Overview and Summary

The appeal in Sullivan v The King concerns a challenge against the sentence imposed on Steven Patrick John Sullivan by Judge Ruth. Sullivan was sentenced to 20 months’ imprisonment for attempting to pervert the course of justice, a crime with a maximum penalty of seven years’ imprisonment. The appellant argued that the sentence was manifestly excessive due to inadequate discounts and that imprisonment should have been commuted to home detention. The Crown opposed the appeal, asserting that the sentence was not manifestly excessive, the discounts were within range, and imprisonment was the appropriate sentence.

The offending involved Sullivan misleading WorkSafe investigators and the Court sentencing Aimex Ltd, where he was the managing director, about a previous incident to reduce the fine imposed on the company. Sullivan's actions resulted in an undoubtedly smaller penalty for Aimex. Sullivan contended that insufficient discounts were applied to his personal circumstances, and the Judge erred by imposing a sentence of imprisonment instead of home detention. The Crown argued that the sentence was not manifestly excessive, the discounts were within range, and imprisonment was the appropriate sentence.

The court examined whether the sentence was manifestly excessive and found that the discounts provided by the Judge were adequate, resulting in a sentence that was not manifestly excessive. The court concluded that the Judge did not err in imposing a sentence of imprisonment rather than home detention and that the short sentence of imprisonment was the least restrictive outcome available in the circumstances, taking into account the principles and purposes of sentencing. The appeal was dismissed.

Orders