Director of Civil Aviation v Sarginson [2019] NZDC 21779

Published 27 July 2020

Sentencing — reckless conduct in respect of duty — PCUB — Health and Safety at Work Act 2015, ss 47-49, 50 & 151 — Sentencing Act 2002, ss 7-10, 12, 13, 16, 32 & 38A — Fisheries Act 1996 — Maritime Transport Act 1994 — New Zealand Bill of Rights Act 1990 — Oceana Gold (New Zealand) Ltd v WorkSafe New Zealand [2019] NZHC 365 — Stumpmaster v WorkSafe New Zealand [2018] NZHC 2020 — Department of Labour v Hanham & Philp Contractors Limited (2009) 9 NZELC 93,095; (2008) 6 NZELR 79 (HC) — WorkSafe New Zealand v Salters Cartage Limited [2017] NZDC 26277 — Maritime New Zealand v Kingipotiki [2019] NZDC 10216 — Director of Civil Aviation v Sarginson [2019] NZDC 2565 [Conviction Decision] — R v Nicholson CA397/90, 16 April 1991 — R v Taueki [2005] 3 NZLR 372 (CA) — WorkSafe New Zealand v Department of Corrections [2016] NZDC 24865 — WorkSafe New Zealand v Benchmark Homes Canterbury [2016] NZDC 709. The defendant appeared for sentencing on two charges under the Health and Safety at Work Act (HSWA) for acting recklessly as to the risk of serious injury or death; one charge in his capacity as a person conducting a business or undertaking, and the other in his capacity as a worker. The defendant operated an earthmoving business and owned a 75 percent share, the other 25 percent being owned by the deceased. In 2016 the defendant and the deceased flew a helicopter belonging to the business into some mountain ranges with low-lying cloud cover, meaning visibility was diminished. The helicopter had also exceeded its weight capacity in terms of loading. The defendant, who was operating the helicopter, tried to manoeuvre the helicopter in order to increase visibility and then brought it into a hover. The overloaded helicopter combined with the low visibility resulted in it sinking downwards and crashing into a hillside. The deceased was unable to be resuscitated and died at the scene. The guideline case of "Stumpmaster" gave a general approach to sentencing under the HSWA. A court is to assess the amount of reparation, fix the amount of the fine, consider ancillary orders, and to make an overall assessment of the proportionality and appropriateness of the imposition of reparation and fine, as well as any other sentence imposed. A sentence of reparation is the principal focus in the sentencing process, taking into consideration s 32 of the Sentencing Act. The Judge determined this amount to be $100,000; $80,000 payable to the deceased's widow and $20,000 to her son. In assessing the fine, the Judge considered the defendant's culpability and determined the defendant's shortcomings with regards to be two-fold. There was the fact that the helicopter was overloaded, and pilot error. The Judge assessed the defendant's culpability as high, arriving at a starting point of two years and three months' imprisonment. The Judge also considered the mitigating factors, which included the fact that the defendant had assumed the deceased's partnership debt, the degree of remorse, and the defendant's own loss of a friend and business partner with the death of the deceased. A discount of 15 percent was given for those factors, and an additional 10 percent for restorative justice attendance and a discount for being a first-time offender. An end sentence of 19 months' imprisonment was arrived at which, on the recommendation of the pre-sentence report, was converted to a sentence of four months' community detention and 350 hours of community work. The Judge decided to consider the consequential loss issue in a separate judgment after further submissions. Judgment Date: 30 October 2019.