Triggs v R - [2010] NZCA 543

IN THE COURT OF APPEAL OF NEW ZEALAND
CA393/2010
[2010] NZCA 543
BETWEENMOBILE REFRIGERATION SPECIALISTS LIMITED
Applicant

ANDTHE QUEEN
Respondent

Hearing:11 November 2010

Court:Stevens, Gendall and Cooper JJ
Counsel:S P H Elliott for Applicant
N P Chisnall for Respondent

Judgment:23 November 2010 at 4.00 pm

JUDGMENT OF THE COURT

The application for special leave to appeal is declined.
____________________________________________________________________

REASONS OF THE COURT
(Given by Stevens J)
Introduction
[1]       Mobile Refrigeration Specialists Ltd (MRS) seeks special leave to appeal against a fine and reparation order in respect of offences under the Health and Safety in Employment Act 1992 (HSE Act). At issue is whether the means of a corporate offender’s shareholders should be relevant to the imposition or quantum of the fine and reparation order.
Background
[2]       MRS, through its director and shareholder Mr Cook, was responsible for the installation of a dangerous hydrocarbon-based refrigerant in a coolstore operated by Icepak Coolstores Ltd. As a result, the coolstore exploded on 5 April 2008. A fireman was killed and several others were seriously injured.
[3]       MRS pleaded guilty in the District Court to charges laid under the HSE Act. It was fined $56,000 and ordered to pay reparation of $175,000.[1] Heath J dismissed the substantive appeal.[2] The issue on that appeal was whether the District Court Judge took adequate account of MRS’s ability to pay the fine imposed. It was accepted that the fine properly reflected the criminality of the offending.
High Court decision on the substantive appeal
[1]Department of Labour v Icepak Coolstores Ltd DC Hamilton CRI-2009-019-11343, 15 December 2009.
[2]Mobile Refrigeration Specialists Ltd v Department of Labour HC Hamilton CRI-2009-419-94, 29 March 2010.
[4]       The judgment of Heath J referred to the process for fixing fines and reparation orders set out in Department of Labour v Hanham & Philip Contractors Ltd,[3] which involves setting the reparation, setting the fine, then making an assessment as to totality. The Judge then referred to s 12(1) of the Sentencing Act 2002:
If a court is lawfully entitled under Part 2 to impose a sentence of reparation, it must impose it unless it is satisfied that the sentence would result in undue hardship for the offender or the dependants of the offender, or that any other special circumstances would make it inappropriate.
[3]      Department of Labour v Hanham & Philip Contractors Ltd (2008) 6 NZELR 79 (HC).

[5]       The Judge noted that a fine will generally be appropriate for offences against the HSE Act. But the sentencing Judge retains a discretion not to impose a fine if satisfied that the offender does not or will not have the means to pay it.[4]
[4]      Sentencing Act, s 14(1).
[6]        Heath J then referred to the relationship between fines and reparation, and the principle that the Court may take into account the financial ability of the offender to pay.[5] The Court may order a report under the Sentencing Act to assess the offender’s capacity to pay reparation.[6] He also noted the ability…

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 Triggs v R

Details

AGLC: Triggs v R [2010] NZCA 543
Case: [2010] NZCA 543
Decision Date: 23 November 2010

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Mobile Refrigeration Specialists Ltd (MRS) sought special leave to appeal a fine and reparation order imposed by the District Court under the Health and Safety in Employment Act 1992 (HSE Act). The appeal centred on whether the means of MRS’s shareholders should be considered in determining the fine and reparation order. MRS argued that the District Court erred by not reducing the fine based on the company's alleged incapacity to pay. The key issues were whether the financial position of a company’s shareholders should be relevant to the imposition or quantum of a fine, and if the existence of the court’s jurisdiction to remit a fine in whole or in part on the grounds of financial incapacity should be considered when determining the fine. The Court of Appeal concluded that the issues were highly fact-specific and did not present a question of general or public importance warranting special leave. The reasoning of the High Court in dismissing the appeal was sound, and the application for special leave was declined.

Orders