Sullivan v The King

[2023] NZHC 2251

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CRI-2023-442-9

[2023] NZHC 2251

BETWEEN

WILLIAM MANSFIELD TREVOR SULLIVAN
Appellant

AND

THE KING

Respondent

Hearing:

17 August 2023

Appearances:

M Zintl for Appellant

J M Webber for Respondent

Judgment:

18 August 2023

JUDGMENT OF GRICE J

Appeal against sentence

Introduction

[1]                 On 21 July 2023, Judge Ruth sentenced the appellant,1 Mr William Sullivan, to nine months’ imprisonment for making a false statement.2 The maximum penalty for this offence is three years’ imprisonment.

[2]                 The offending involved the appellant deliberately misleading WorkSafe investigators in their investigation into a workplace incident at a company called Aimex Ltd (Aimex), where the appellant was the health and safety manager.

1      R v Sullivan [2023] NZDC 15041 [decision on appeal].

2      Crimes Act 1961, s 111.

SULLIVAN v R [2023] NZHC 2251 [18 August 2023]

[3]                 The Judge also granted the appellant leave pursuant to s 80I of the Sentencing Act 2002 to apply to have the sentence of imprisonment cancelled and substituted with a sentence of home detention. The appellant submits the Judge erred in doing so, and the Crown accepts this is the case.

[4]                 The appellant appeals his sentence on the basis it is manifestly excessive. The appellant submits the Judge erred in imposing a sentence of imprisonment and ought to have imposed a sentence of community work and supervision. The Crown opposes the appeal. It says the sentence imposed was within range and available to the Judge.

The offending

[5]                 In July 2019, the victim, an employee of Aimex, a marine and industrial engineering company, was cleaning an engine within the confines of a boat hull using a product known as brake cleaner 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.

[6]WorkSafe investigated the workplace incident.

[7]                 Five days prior to the incident, another employee, Employee X, had been directed to carry out the same task in the same boat in the same way as the victim. He had also been overcome with fumes from the brake cleaner, but to a lesser extent. Employee X had realised what was happening when he became lightheaded. He had removed himself from the boat hull and reported the incident and was told to go home. Before he did so, he completed an incident with the appellant, who was the Health and Safety Officer of the company at the time.

[8]                 The appellant assessed the incident as a “lack of ventilation” and “incorrect product for task”. He then recorded the “probable consequence” of the incident as being “significant”. However, nothing was done as a result of the report of  Employee X and five days later the victim suffered his injury. The appellant…