WorkSafe New Zealand v Ministry of Social Development [2016] NZDC 24649

Published 06 December 2016

Failing to take practicable steps to ensure safety — application for discharge without conviction — Health and Safety in Employment Act 1992, ss 6 and 50 — Crown Organisations (Criminal Liability) Act 2002, s 8(4) — Sentencing Act 2002, ss 7, 8, 106 and 107 — Department of Labour v Hanham and Philp Contractors Ltd HC Christchurch CRI-2007-409-2, 18 December 2008. The defendant had failed to take all practicable steps to ensure the safety of employees while at work under s 6 and 50 of the HSEA and was sentenced in this proceeding. The three step approach of "Hanham" was set out, which involves assessing reparation, fixing a fine, and then conducting an overall assessment of the proportionality and appropriateness of the penalty. No reparation was sought by the prosecution (the defendant had already made significant ex gratia payments to affected victims), and a fine could not be imposed on the defendant as a Crown organisation pursuant to the COCLA (s 8(4)). Despite that, in order to achieve the principles and purposes of sentencing the process of setting the appropriate fine was carried out, and it was determined that if a fine were to be set it would be at $16,000. This fine would recognise the offending was at the lower band of culpability, and incorporate a 60 percent discount for mitigating factors such as remorse, guilty plea and a previously unblemished health and safety record. It was stressed that the defendant's failure to take six practicable steps to ensure the safety of its employees did not cause the harm inflicted by a lone gunman on 1 September 2014, which resulted in the death of two employees. The defendant's application for a discharge without conviction under s 106 of the Sentencing Act was declined. It was not satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offending (s 107). The defendant was primarily concerned about the indirect consequences of conviction, in that a conviction would convey the impression that the defendant's failures contributed to the harm caused by the lone gunman. This concern was accepted, however, it was determined that a discharge without conviction would not address the risk of misreporting or unjustified inference of harm. The entering of a conviction was not out of all proportion to the gravity of the offending, which although at the lower band of culpability was nonetheless significant and the defendant was required to be held to account. Judgment Date: 6 December 2016.