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 assisted in the extraction of the victim from the hull of the vessel. It is suggested, therefore, that he was fully aware of the circumstances of both incidents.

[9]                 WorkSafe became aware of Employee X’s incident in the course of its investigation into the victim’s incident. The appellant was asked about the earlier incident. He denied knowledge of it having occurred and denied knowledge of any incident report. The appellant made a number of positive assertions suggesting that the incident involving Employee X could not have happened, including that a tradesperson would not have been doing that task, and that the employee had gone home early on the relevant day due to his conduct towards a manager.

[10]              Due to a lack of corroboration, WorkSafe was not able to clearly establish the previous incident or establish that Aimex was aware of it due to the creation of an incident report.

[11]              Aimex subsequently pleaded guilty to charges under the Health and Safety at Work Act 2015 and Health and Safety at Work (Hazardous Substances) Regulations 2017. At sentencing, Aimex in its submissions rejected the proposition that a previous similar incident had been reported to it in a manner that could reasonably have been followed up on. It submitted that it could not be concluded that Aimex “should have, or reasonably could have, known about the previous alleged incident by the time of [the victim’s] incident”. It was granted a 10 per cent discount by the Judge.

[12]              In sentencing Aimex, the Judge placed Aimex in the medium culpability category, towards the higher end.3 In determining an appropriate fine, the Judge noted there was no real appreciation of the potential for serious harm or even death and that he was sure if there had been such an appreciation, the cleaning of the engine room would not have been undertaken in this way.4 The Judge considered the lack of training and effective supervision was probably the result of a lack of appreciation of the more senior members within the company of the risk and its potential consequences, and had there been that appreciation, he was sure those involved would not have allowed this to happen, because they certainly did not intend it to happen.5 The Judge noted it was easy with the benefit of hindsight to judge harshly “because no-one has anticipated what happened here and of course that is the problem”.6

3      WorkSafe New Zealand v Aimex Ltd [2021] NZDC 14313 at [37].

4 At [25].

5 At [30].

6 At [31].

[13]              The actions taken by some Aimex employees, including the appellant’s false statements to WorkSafe intended to cover up the earlier incident during the WorkSafe investigation, were discovered after the sentencing by the newly employed Chief Operating Officer. The appellant admitted to the Chief Operating Officer that he had not told WorkSafe about the matter when interviewed even though he had knowledge of the incident and the Chief Operating Officer advised WorkSafe of this. The police then commenced an investigation into the allegation of misleading and withholding information from the WorkSafe investigators.

[14]              The appellant was interviewed by police and admitted to both having had knowledge of the earlier incident report as well as having completed sections of the report himself. He claimed he believed it was not his job to disclose the report to WorkSafe, as he was just an employee and the blame for the matter not being disclosed to WorkSafe lay with the former General Manager, his brother.

Decision on appeal

[15]              In sentencing the appellant, the Judge considered that the appellant had disregarded his obligations as a health and safety officer, that his dereliction of duty was “outrageous” and that he had then for some unknown reason continued with the lie.7 The Judge considered the appellant had to be held to account for his serious dereliction of duty.8

[16]              The Judge adopted a starting point of 12 months’ imprisonment.9 He allowed the appellant a full credit for guilty plea of 25 per cent, resulting in an end sentence of nine months’ imprisonment.10 No issue is taken on appeal with either the starting point or the discount for guilty plea (and as such the end calculated sentence).

[17]              The Judge was of the view that “deterrence, both general and specific, must be the overriding and overwhelmingly important factors of this sentencing” and considered that no other sentence could meet the sentencing requirements other than

7      Decision on appeal, above n 1, at [23].

8      At [23] and [26].

9 At [25].

10 At [26].

a term of imprisonment.11 The Judge therefore sentenced the appellant to nine months’ imprisonment, with leave to apply for home detention once he had served more than half his sentence.12

Submissions

Appellant's submissions

[18]              The appellant submits the Judge erred in sentencing the appellant on the basis that he breached his duties as a health and safety officer, that this was an outrageous dereliction of duty and that the appellant was directly responsible for the injuries caused to the victim. The appellant also submits the Judge erred in failing to take into account the desirability of keeping the appellant in the community pursuant to s 16 of the Sentencing Act. The appellant says that in sentencing the appellant, the Judge erred in focusing solely on the statutory purpose of deterrence to the exclusion of all other sentencing purposes and principles. The appellant says the Judge also erred in granting the appellant leave to apply for the cancellation of imprisonment in substitution of home detention on a basis that s 80I does not permit.

[19]              The appellant submits the appropriate sentence, given the nature of the charge and the appellant’s culpability in respect of that charge, would have been a sentence of community work and supervision.

[20]              No suitable home detention address was available at the time of sentencing. No adjournment was sought to enable a report as the Judge, Mr Zintl submitted in his oral submissions, made it clear in comments to that effect in the Judge’s decision declining bail pending appeal. Mr Zintl said an address is available but it has not yet been assessed for technical suitability.

Respondent's submissions

[21]              The respondent opposes the appeal. It says the sentence imposed was not manifestly excessive but rather was within range and available to the Judge. The

11     At [27]–[28.

12 At [29].

Crown submits that some offending requires a sentence of imprisonment, home detention will not always be imposed even if it is an available option, and a sentence of community work and supervision would be wholly inadequate to deal with the seriousness of this offending.

Approach to appeal

[22]              An appeal against sentence is an appeal against a discretion and must only be allowed if the Court is satisfied that, for any reason, there was an error in the sentence imposed and a different sentence should have been imposed.13 The Court must dismiss the appeal in any other case.14

[23]              In an appeal against sentence, an appellate court will not intervene unless a sentence was outside the range available to the sentencing Judge.15 The focus is on the final sentence and whether that was in the available range, rather than the exact process by which it was reached.16 An appellate court must therefore exercise an appropriate degree of restraint and will intervene only where the sentence imposed is “manifestly excessive” on the basis of some material error so that a different sentence should be imposed.17

[24]              Section 251(2) of the Criminal Procedure Act 2011 provides that if the appeal is allowed, the appeal court must:18

(a)set aside the sentence and impose another sentence (whether more or less severe) that it considers appropriate; or

(b)vary the sentence, any part of the sentence, or any condition of the sentence; or

13     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].

14     Criminal Procedure Act 2011, s 250(3).

15     Tutakangahau, above n 13, at [36].

16     Ripia v R [2011] NZCA 101 at [15]; and Tutakangahau, above n 13, at [36].

17     Kumar v R [2015] NZCA 460 at [81]; and Tutakangahau, above n 13, at [32].

18     Criminal Procedure Act, s 251.

(c)remit the sentence to the court that imposed it and direct that court to take any action of a kind described in (a) or (b) as specified by the appeal court.

[25]              In remitting a sentence under s 251(2)(c), the appeal court may give the sentencing court any further directions it considers appropriate about the manner in which the specified action is to be taken.

Analysis

Leave to apply for home detention

[26]              I first address the challenge to the Judge granting the appellant leave to apply for the cancellation of imprisonment in substitution of home detention.

[27]              The leave provision allowing for an application for home detention under 80I applies where the court would have sentenced the offender to a sentence of home detention but for the fact that at the time of sentencing a suitable address was not available. In that case the court must make an order granting leave to apply for substitution of a sentence of home detention “if the offender finds a suitable residence at a later date”. It is clear this is not the basis on which the Judge granted leave in this case. He commented that no other sentence than home detention would meet the Sentencing Act requirements in this case. The Judge erred in granting leave on this basis, and the respondent accepts this was an error.

Sentence of nine months’ imprisonment

[28]              The appellant challenges the sentence imposed, submitting that the Judge erred in sentencing him on the basis of breaching his duties as a health and safety officer, that this was an outrageous dereliction of duty and that the appellant was directly responsible for the injuries the victim suffered. The appellant submits he ought not to have been sentenced on these bases.

[29]              The Crown says the appellant’s lies may well have protected the appellant from being prosecuted personally. The Crown says that as a result of the appellant’s

deliberate lies, which were told with the aim of interfering with the WorkSafe investigation, Aimex got away with a significantly reduced fine.

[30]              The Crown says the appellant’s false statements to WorkSafe played an important part in the ability of Aimex to mislead the Court at its sentencing. Had the Judge sentencing Aimex been aware of the true situation, the Crown submits it is inevitable that Aimex would have been placed into the high culpability category of offending at the least. The Crown says the Judge sentencing Aimex was very focused on the company’s lack of awareness of the risk to the victim, which was entirely incorrect, as the company was in fact well aware of the significant risk to the victim.

[31]              The Crown accepts not all of the blame lies with the appellant, and that he was only one offender, with his brother, who was the managing director, another. The appellant’s brother has been sentenced on one charge of perverting the course of justice to 20 months’ imprisonment. Nevertheless, the Crown says the appellant played an important part in the creation of a situation which allowed a guilty company to reduce its liability by hundreds of thousands of dollars, through misleading the investigating agency and the Court.

[32]              The appellant is correct in saying that he was neither charged with nor convicted of causing the victim’s injuries and that at law he was not criminally responsible for the victim’s injuries. But I do not consider the Judge sentenced the appellant on that basis. Rather, I consider the Judge referred to these in considering the gravity of the appellant’s offending in this case, and his culpability for the offending. The Judge did refer to the appellant’s obligations in preventing the incident and noted that the appellant did have “direct responsibility for [the victim’s] plight”.19 However, at no point did the Judge refer to sentencing the appellant on charges of his dereliction of duty. Indeed, the Judge explicitly stated that he “agree[d] entirely” that the actions of the company and the appellant’s culpability were “separate issues”.20

[33]              I am satisfied that the Judge sentenced the appellant on the charge on which he was convicted, that is making a false statement, but took the surrounding

19     Decision on appeal, above n 1, at [23].

20 At [21].

circumstances into account in determining the gravity of the offending and the defendant’s culpability, as he was entitled to do.

[34]              Turning to the sentence that was imposed itself, the appellant contended for a sentence of community work and supervision, but the Judge sentenced the appellant to a sentence of nine months’ imprisonment. At no point in the appellant’s sentencing did the Crown concede that a sentence of community work and supervision would be sufficient. Indeed, the Crown said, and continues to say, that such a sentence would be wholly inadequate to deal with the seriousness of this offending.

[35]              I agree. Although the PAC report suggested a sentence of community work and supervision, a sentence of supervision has no appropriate relationship to the offending here. While there was some suggestion of problems encountered by the appellant as a result of the incident, the offending appears to have been driven by other factors requiring a more serious response.

[36]              A sentence of community work and supervision would fail to recognise the seriousness of the offending in this case. In particular, I consider it would fail to meet the purposes and principles in sentencing in relation to deterring both the appellant and others from committing such offending in the future. The appellant contends that the Judge erred in focusing solely on the statutory purpose of deterrence to the exclusion of all other sentencing purposes and principles.

[37]              I accept that an assessment that focuses solely on one purpose (such as deterrence) to the exclusion of all others amounts to an error of law.21 However, I do not consider that is the situation here. The Judge clearly referred, both expressly and impliedly, to other principles and purposes of sentencing, such as taking into account the gravity and seriousness of the offending,22 taking into account the general desirability of consistency with other sentences,23 and providing for the interests of the victims.24 The Judge referred to deterrence not as the “sole” or “only” factor in

21 Fairbrother v R [2013] NZCA 340 at [30]; Manikpersadh v R [18]–[19]; Brittin v Police [2017] NZHC 2410, [2018] 2 NZLR 147; McLean v Police [2018] NZHC 102; Ruru v Police [2018] NZHC 114; and Smith v Police [2020] NZHC 25.

22     Sentencing Act, s 8(a) and (b).

23     Section 8(e).

24     Section 7(1)(c).

sentencing the appellant (and did not treat it as such), but rather as the “overriding and overwhelmingly important” factor.25

[38]              The Judge concluded that there was no other sentence that could meet the Sentencing Act requirements but a term of imprisonment.

[39]              However, unlike the Judge, I take the view that this is a case where a sentence of imprisonment was not the least restrictive outcome that was appropriate in the circumstances.26 Although there is a need in the circumstances to deter such offending, a sentence of home detention would have been sufficient for that purpose here. Home detention is the second-most stringent and serious type of sentence, after imprisonment. It is a real alternative to a sentence of imprisonment, and although home detention will not always be imposed, I believe a sentence of home detention would have met the applicable purposes and principles of sentencing in this case.

[40]              In particular, I note that s 16(2) provides that the court must not impose a sentence of imprisonment unless it is satisfied that the listed purposes of sentencing, which include holding the offender accountable for the harm done, providing for the interests of the victim of the offence, and denouncing the conduct in which the offender was involved, could not be achieved by a sentence other than imprisonment. I consider the Judge erred in finding that only a sentence of imprisonment would meet those listed purposes. A sentence of home detention was sufficient to do so in this case and would have been the least restrictive outcome in the circumstances.

Outcome

[41]              The sentence of nine months’ imprisonment was in my view manifestly excessive. A sentence of home detention was appropriate.

[42]              I would therefore be minded to allow the appeal and substitute the sentence imposed for a sentence of home detention. However, the Court does not have before it the details of any suitable address at which the appellant could serve an

25     Decision on appeal, above n 1, at [27].

26     Sentencing Act, s 8(g).

electronically monitored sentence of home detention. Therefore, that is not an option available to me.

[43]              I canvassed with counsel the options in view of the fact that a suitable address was not available. As detailed above, s 251 of the Criminal Procedure Act provides an appeal court allowing an appeal with specified options. I am satisfied in this case that the practical solution is to remit the sentence to the District Court under s 251(2)(c) to set aside the sentence and impose another sentence that it considers appropriate. I make a further direction under s 251(3) that the District Court is to resentence the appellant after receiving information from counsel as to the possibility of home detention. This will enable the District Court to sentence the appellant on the basis of information before it in respect of the availability of a suitable address for a sentence of home detention. I note such a similar direction was made in the Court of Appeal decision R v Harriman.27

Conclusion

[44]              I am satisfied the sentence imposed in this case was manifestly excessive, and a sentence of home detention would have been sufficient to meet the purposes and principles of sentencing in this case. Therefore, the appropriate sentence was home detention, being the least restrictive outcome in the circumstances.

[45]              However, there is no suitable proposed address before the court for the imposition of a sentence of home detention.

[46]              I therefore make an order under s 251(2)(c) and (3) of the Criminal Procedure Act remitting the sentence to the District Court to set aside the sentence and impose another sentence that it considers appropriate after receiving information from counsel as to the possibility of home detention.

Grice J

Solicitors:

O’Donoghue Webber, Nelson

27     R v Harriman [2009] NZCA 156 at [28]–[29].