Respecting victims in Health and Safety prosecutions

By Judge Richard McIlraith

For many years the District Court has dealt with prosecutions following workplace accidents. The law on workplace safety has been significantly reformed and the court is now seeing prosecutions under the Health and Safety at Work Act 2015.

Judge McIlraith

A number of employers have been convicted following prosecution by Worksafe, with the sentences imposed reflecting the increased fines provided for by the Act.

As an alternative to prosecution, many investigations have been concluded by employers or others involved entering into “enforceable undertakings” with WorkSafe. These are legally binding agreements to remedy harm and support higher standards. These are receiving significant media attention. 

One thing has not changed. All involved in a prosecution following a workplace accident need to be focused on the circumstances and needs of the victims. Victims are not usually represented by counsel. However, they must not be isolated and left to feel outside of what can often become a drawn-out, technical process.

The court process is undoubtedly daunting. As judges, along with the court staff we try our hardest to ensure victims are kept informed and looked after.

Prosecutions can be lengthy, so we are conscious to explain to victims at each hearing where we are at in the process.

As with any prosecution, there are several preliminary hearings before either a defended trial is heard or, in the event of a conviction or guilty plea, a sentencing. Guilty pleas may not be entered for a long time after an accident.

Victims will frequently attend a defended hearing and are made welcome.

"We try our best to explain to victims how the sentencing process works because it is potentially stressful and confusing"

If a defendant pleads guilty, restorative justice will almost always then be directed. This is a requirement under the Sentencing Act whereby the prosecution is adjourned to enable restorative justice to occur. Judges are not involved but, before holding a sentencing hearing, we receive a report outlining the outcome of the restorative justice process.

In a sentencing hearing, there is the “business of sentencing” – reparation orders in favour of victims and the imposition of fines - which must be worked through. But there is also a human side, particularly the experience and needs of the victims.

We try our best to explain to victims how the sentencing process works because it is potentially stressful and confusing.

Sentencing has a structured framework that judges are required to follow. Reparation is considered first. This is challenging, and many judges have talked about the difficulties in attempting to quantify loss and emotional harm suffered by victims.

Victims are encouraged to take part in the sentencing process. Care is taken to try and ensure they have an opportunity to present the effects on them personally, through victim impact statements and by addressing the court.

The level of fine is then set. This requires taking heed of decisions of senior courts and carefully assessing the level of culpability, including the nature and severity of harm caused by failings of the defendant.

Finally, the process requires considering any mitigating factors and how the fine might be discounted.  Judges try to explain how this works because to a victim it may appear calculated and devoid of emotion.

There are also several practical measures to help victims such as timing hearings that best suit them, the choice of courtroom and managing the presence of media.

It is all part of the court’s ongoing focus on victims, their needs and circumstances.