Maritime New Zealand v Wackrow [2019] NZDC 1943

Published 30 August 2019

WorkSafe — discharge without conviction — Health and Safety at Work Act 2015 s 45 — Sentencing Act 2002 ss 9, 106 &107 — Criminal Procedure Act 2011 — Z (CA447/12) v R [2012] NZCA 599 — Delaney v Police HC Wellington CRI-2005-485-22, 22 April 2005. The defendant was charged under s 45 of the Health and Safety at Work Act after unloading a digger by crane which had its cables snap, causing it to fall close to other workers. The defendant sought a discharge without conviction as it was his first conviction, it would affect his employment prospects, and he had suffered significant financial and personal penalty from the incident. The Judge considered the three steps in determining a s 106 application, namely: the gravity of the offence; the direct and indirect consequences of conviction; and the question of whether or not the consequences are out of all proportion to the gravity of the offence. The Judge held that the balancing exercise firmly favoured conviction, but while the charge warranted a starting point of $8000 in fines (after discounts an approximate end fine of $800), the Judge considered there was no need for further deterrence or penalty. The defendant was convicted and discharged. Judgment Date: 1 February 2019.