Ocean Fisheries Limited v Maritime New Zealand [2022] NZCA 164 (5 May 2022)

Last Updated: 10 May 2022

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA559/2021 [2022] NZCA 164

	BETWEEN	OCEAN FISHERIES LIMITED Applicant
	AND	MARITIME NEW ZEALAND Respondent

Court:	Collins, Lang and Mallon JJ
Counsel:	A F Pilditch QC, A P Colgan and A L Fraser for Applicant D R La Hood, T G Bain and M A Heslip for Respondent
Judgment: (On the papers)	5 May 2022 at 9.30 am

JUDGMENT OF THE COURT

The application for leave to bring a second appeal is declined.
____________________________________________________________________

REASONS OF THE COURT

(Given by Lang J)

• [1] The applicant, Ocean Fisheries Ltd (Ocean Fisheries), was the owner of the fishing trawler Jubilee. The vessel sank off the Canterbury coast in October 2015. All three crew members on board the vessel were drowned.
• [2] Ocean Fisheries pleaded guilty to a charge laid by the respondent, Maritime New Zealand, under ss 18 and 50(1)(a) of the Health and Safety in Employment Act 1992 (HSEA). This alleged that Ocean Fisheries had failed to take all reasonable steps to ensure the safety of the men on board the vessel.
• [3] In a decision delivered on 16 September 2020 Judge Couch ordered Ocean Fisheries to pay reparation for emotional harm totalling $505,000 to the parents, siblings, partners and children of the deceased crewmen.^[1] Ocean Fisheries appealed against the sentence of reparation, contending it was manifestly excessive. Nation J dismissed the appeal in a judgment delivered on 13 August 2021.^[2] Ocean Fisheries seeks leave to bring a second appeal against the sentence of reparation.

Relevant principles

• [4] The application falls to be determined under s 253 of the Criminal Procedure Act 2011. Section 253(3) prohibits leave being granted for a second appeal unless the Court is satisfied that the proposed appeal involves a matter of general or public importance or that a miscarriage of justice may have occurred, or may occur, unless the appeal is heard.
• [5] Ocean Fisheries seeks leave to bring the appeal under the first limb of s 253. It contends the proposed appeal involves a matter of general or public importance relating to the imposition of a sentence of reparation in the context of charges laid following workplace accidents. It says jurisdiction exists to grant leave because the proposed appeal raises important questions of law that have application beyond the circumstances of the present case.^[3]

Proposed grounds of appeal

• [6] Ocean Fisheries seeks to raise the following questions in the proposed appeal:

  (1) Did the High Court err in failing to have regard to the principle of consistency in quantifying the level of emotional harm reparation on an individual victim basis?

  (2) Has this methodology resulted in the imposition of a manifestly excessive sentence of reparation?

  (3) Did the High Court err in finding that any financial compensation paid to the families of the deceased crewmen prior to sentencing needed to relate to emotional harm in order to be taken into account in quantifying the amount of reparation to be paid?

  (4) Did the High Court err in finding the evidential standard for an award of emotional harm reparation could be satisfied when no victim impact statement had been filed and/or by reference to generalised comments in victim impact statements made by persons other than the victim to whom a specific award was made?

  (5) Did the High Court err in having regard to the insurance status of a defendant in determining the quantum of emotional harm reparation?

  (6) Did the High Court err in finding that the culpability of a defendant is irrelevant in quantifying a sentence of emotional harm reparation?

Preliminary issue

• [7] We deal first with a preliminary issue. This relates to an argument for Maritime New Zealand that this Court should decline leave on the basis that Ocean Fisheries ought to have requested a Full Court of the High Court to hear its appeal.
• [8] We see no merit in this argument. The fact that Ocean Fisheries did not seek a hearing by a Full Court of the High Court is no barrier to it seeking leave to bring a second appeal.

Analysis

Questions 1 and 2 — awarding compensation to individual victims rather than family groups

• [9] The first two questions relate to the appropriateness of the sentencing methodology adopted in the District Court and approved in the High Court. This involved fixing reparation that was payable to individual members of the families of the deceased crewmen rather than, in the first instance, to each family unit.
• [10] Ocean Fisheries contends that earlier sentencing decisions in the District Court routinely identified the total amount of reparation to be paid to a victim’s family with reference to total awards made in other cases. The total could then be distributed either by agreement between members of the family or in such shares to individual family members as the court considered appropriate. Nation J observed that Judges in both the District Court and High Court had in previous cases apportioned a total award of reparation between various family members in differing amounts.^[4] However, the present case represented the first occasion on which either court had been asked to order reparation for emotional harm by reference to what the Court considered appropriate for individual victims rather than by calculating the total that should be awarded to a family unit.
• [11] Ocean Fisheries contends these observations confirm that the approach adopted in the present case was novel and inconsistent with that taken in earlier cases. It also submits that the new approach resulted in Ocean Fisheries being required to pay a manifestly excessive sum by way of reparation because it greatly exceeds the amounts awarded in earlier sentencing decisions. Ocean Fisheries says this approach raises an obvious question of general importance because the approach taken in this case is likely to be followed in future cases in both the District Court and High Court.
• [12] We accept that, in general terms, the approach to be taken in relation to orders for reparation made in relation to offending under the HSEA could amount to a matter of general or public importance. However, we do not consider that the methodology used in the present case sets a precedent that will necessarily affect sentencing outcomes in the future. Rather, it was driven largely by the facts of the case with the offending involving three primary victims, each of whom was survived by several persons who also fell within the definition of victims contained in s 4(1) of the Sentencing Act 2002. Furthermore, the families of the deceased crewmen had what Nation J described as ‘a complex web of family relationships”.^[5] Importantly here, as the final step in the process, the District Court Judge asked whether the total penalty imposed (reparation plus the fine) was proportionate to the circumstances of the offending and the offender and concluded that it was.^[6] The High Court was also satisfied that the overall sentence was not manifestly excessive.^[7]
• [13] Sentencing courts in future cases will remain free to adopt a methodology in which total reparation is fixed in the first instance on a “per family” basis rather than that used in the present case but always subject to the proviso that it does not lead to a manifestly excessive sentence.
• [14] We also consider that rigid adherence to any particular sentencing approach in this context is likely to lead to difficulties. Sentencing courts must be free to impose sentences that best meet the circumstances of the case. This is especially the case given the fact that an order for reparation requires the quantification of intangible harm, for which there cannot be a tariff case.^[8] Furthermore, as Nation J observed, there is nothing under the Sentencing Act or case law which precludes the approach taken in the present case and requires reparation to be awarded on a “per family” approach.^[9]
• [15] We acknowledge, however, that the approach taken in the present case may not be appropriate in all cases. There may, for example, be cases involving numerous persons who come within the statutory definition of “victim”. In such cases the approach taken in the present case is likely to result in a very large total order for reparation. A sentencing court has the ability to reduce the level of any fine imposed to reflect the level of any reparation that has been ordered. This was the approach taken in the present case. However, in cases involving a very large number of victims this may not be sufficient to prevent the end sentence from being manifestly excessive.
• [16] We would have granted leave to appeal if we considered the sentencing methodology used in the present case produced an end sentence that was arguably manifestly excessive. However, we do not consider that to be the case. Taken together, we consider the fine and order for reparation to be within the available range.

Question 3 — earlier payments made to the victims’ families

• [17] This question arises because Mr Stark, the director of Ocean Fisheries, had commendably made payments in the sum of $20,000 to each of the families of the deceased crewmen in the immediate aftermath of the tragedy. In the District Court the Judge had reduced the fine by 15 per cent to reflect the tangible assistance and support Ocean Fisheries had given to the victims’ families.^[10]
• [18] Nation J held that these payments could only have been taken into account when fixing reparation for emotional harm if Ocean Fisheries had made it clear they were being made to mitigate emotional harm suffered rather than to compensate the families for loss of financial support.^[11] Ocean Fisheries had not taken this step. The fact that the Judge had reduced the fine by 15 per cent to reflect the assistance Ocean Fisheries had provided to the victims’ families also persuaded Nation J that the overall penalty was not rendered manifestly excessive by the fact that the payments had not been taken into account in fixing reparation.^[12]
• [19] Ocean Fisheries contends the failure to bring these payments into account when fixing the level of reparation to be paid is likely to lead to significant consequences in the future. It suggests that one of these may be to dissuade employers from providing tangible support to the families of victims for fear that their generosity will not be taken into account later.
• [20] We see such consequences as being unlikely because we consider employers faced with a tragedy of this type are likely to be motivated more by concerns about the wellbeing of their employees’ families than about concern for their own financial position. However, we do not consider the issue to be of any public or general importance in any event. It flows from the facts and circumstances of the present case.

Question 4 — orders made in favour of victims who did not provide victim impact statements

• [21] This issue arises because some of the victims who received an award of reparation did not provide victim impact statements when Ocean Fisheries was sentenced. The Judge awarded them one-half of the amount awarded to persons who had provided victim impact statements.^[13] Nation J considered the victim impact statements provided by other members of the family contained sufficient information to enable the judge to infer that those who had not provided statements would also have been emotionally harmed by the death of a close family member.^[14] He therefore upheld the awards the Judge had made.
• [22] We consider this issue arises from the factual circumstances of the present case and does not give rise to any question of public or general importance. The weight to be given to a victim impact statement (or the absence thereof) when awarding reparation will be case and fact specific. Guidance from this Court is not required.

Question 5 — the relevance of insurance

• [23] Ocean Fisheries had taken out an insurance policy that enabled it to meet the sentence of reparation. It contends the High Court Judge erred in having regard to this fact when determining the amount to be paid by way of reparation.
• [24] This issue arises because Nation J observed:^[15]

[103] I do not consider that, when the particular circumstances of a case require it, an award calculated on an individual basis will be unfair or an error simply because it results in an award for all members of a family which is in excess of what, in comparison with other cases, they might have received on a per family basis. I do not accept that would inevitably result in an injustice. If an offender has the means to pay, this will often be through insurance and, as here, the offender is able to insure against such a liability. The total to be paid in reparation is to be taken into account when fixing the level of fine. If an offender does not have the financial means to pay what would otherwise be appropriate reparation and/or fine, one or both may have to be reduced.

(Emphasis added)

• [25] We see nothing controversial with this observation. The amount to be paid by way of reparation will generally be limited by the extent to which the offender has the means to meet the sentence imposed. Where the offender does not have the means to pay both a fine and reparation, one or both may need to be reduced. Insurance provides one means by which an offender may be able to meet a sentence of reparation. It has no relevance beyond that issue. We therefore do not consider it raises any question of public or general importance.

Question 6 — does the level of culpability affect the amount of reparation to be paid?

• [26] Nation J accepted a submission for Maritime New Zealand that questions of culpability and causation are not generally relevant when fixing the level of any sentence of reparation for emotional harm.^[16] The level of compensation to be paid by way of reparation is fixed in recognition of the harm caused. The culpability of the offender may, however, be relevant when apportioning the extent to which multiple offenders should pay reparation to the victims of their offending.^[17] By way of contrast, the level of the offender’s culpability will always be relevant when fixing the level of any fine to be imposed.^[18]
• [27] These findings are consistent with a considerable body of authority in the High Court,^[19] and we do not consider they raise any arguable issue of law to the contrary. The rationale flows from the fact that, whereas a fine is punitive in nature, a sentence of reparation is compensatory. It is intended, wherever possible, to restore the victim’s position in relation to damage such as emotional harm.^[20] Resort to refined causation arguments is not to be encouraged.^[21]

Result

• [28] The application for leave to bring a second appeal is declined.

Solicitors:
McElroys, Auckland for Applicant
Crown Solicitor, Wellington for Respondent

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^[1] Maritime New Zealand v Ocean Fisheries Ltd [2020] NZDC 18702 [Sentencing notes] at [26]. The Judge also ordered Ocean Fisheries Ltd to pay reparation for consequential loss and a fine. Those aspects of the sentence were not challenged on appeal.

^[2] Ocean Fisheries Ltd v Maritime New Zealand [2021] NZHC 2083 [High Court judgment]. The High Court also increased the reparation for emotional harm by $5,000 because the District Court Judge had incorrectly believed that one sibling did not want reparation: at [171].

^[3] See McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764 at [36].

^[4] High Court judgment, above n 2, at [75].

^[5] At [90].

^[6] Sentencing notes, above n 1, at [89].

^[7] High Court judgment, above n 2, at [150].

^[8] WorkSafe New Zealand v Department of Corrections [2016] NZDC 24865, [2017] DCR 368 at [25].

^[9] High Court judgment, above n 2, at [105]–[106].

^[10] Sentencing notes, above n 1, at [81].

^[11] High Court judgment, above n 2, at [145]–[146].

^[12] At [150].

^[13] Sentencing notes, above n 1, at [26].

^[14] High Court judgment, above n 2, at [168].

^[15] High Court judgment, above n 2.

^[16] At [74].

^[17] At [70].

^[18] At [65].

^[19] Department of Labour v Hanham & Philp Contractors Ltd [2008] NZHC 2076; (2008) 6 NZELR 79 (HC) at [54]–[55] and [80]; and Stumpmaster v Worksafe New Zealand [2018] NZHC 2020, [2018] 3 NZLR 881.

^[20] R v Donaldson CA227/06, 2 October 2006 at [34].

^[21] At [36].