Worksafe New Zealand v Department of Corrections [2016] NZDC 24865 (7 December 2016)

Last Updated: 21 February 2017

_{EDITORIAL NOTE: NO SUPPRESSION APPLIED.}

IN THE DISTRICT COURT AT NELSON

CRI-2014-042-002678 [2016] NZDC 24865

WORKSAFE NEW ZEALAND

Prosecutor

v

DEPARTMENT OF CORRECTIONS

_Defendant

Hearing:	7 December 2016
Appearances:	D R La Hood and D M Brabant for the Prosecutor B M Nathan and J A Maslin-Caradus for the Defendant
Judgment:	7 December 2016

NOTES OF CHIEF DISTRICT COURT JUDGE JAN-MARIE DOOGUE ON SENTENCING

Executive Summary

[1] On 22 September 2016 the defendant, the Department of Corrections (“Corrections”), was found guilty of one charge under ss 15 and 50(1)(a) Health and Safety in Employment Act 1992 (“the HSEA”).

[2] The defendant failed to take all practicable steps to ensure that no action or inaction of any of its employees while at work harmed any other person, namely, your family member Robert Charles Ian Cave, who I shall call Mr Cave for the rest

_{of the decision.}

WORKSAFE NEW ZEALAND v DEPARTMENT OF CORRECTIONS [2016] NZDC 24865 [7 December

2016]

[3] Corrections had placed Mr Cave at a church, an agency approved by the defendant as a community work site. They had done so to complete his community work sentence. He died on 7 June 2014, having been struck by a log while assisting another offender to cut the log into rounds with a chainsaw. It was Mr Cave’s first day undertaking community work.

[4] Corrections’ failure to adequately train its employees and ensure that community work agencies were properly assessed and informed of Corrections’ safety requirements led to Mr Cave’s death. This failure is segmented into a number of practicable steps which I will append in an appendix to these sentencing remarks. Corrections accepted that it had failed to take a number of those practicable steps, but it disputed that those steps were directed at the actions and inactions of its employees while at work and further disputed that it failed to take three of them.

[5] At trial, it was established that Corrections had failed to take steps that it was required to take as part of its s 15 duty. Essentially, Corrections failed to take available steps to eliminate errors in its employees’ conduct, or mitigate those errors when placing offenders with community work agencies. I now proceed to sentence Corrections for this failure.

[6] While the maximum penalty for an offence under s 50 of the HSEA is a fine not exceeding $250,000, Corrections cannot be sentenced to a fine as it is a Government department. Section 8(4) of the Crown Organisations (Criminal Liability) Act 2002 precludes such a fine. I will, however, undertake a nominal sentencing exercise as is common in cases of this nature.

[7] This exercise allows the Court to adhere to the purposes of sentencing by holding Corrections accountable for the harm done to Mr Cave and promoting

Corrections’ sense of responsibility for the harm.1

_{available and sought by WorkSafe.}

A sentence of reparation is

1 Sentencing Act 2002, ss 7(b) and (f).

[8] For reasons that follow, I assess Corrections’ culpability to be in the high band set out in Hanham & Philp.2 Had a fine been available, I would have awarded a

_{fine of $84,000. I order that Corrections pay reparation as follows:}

_{(a) To Ms Harris, in the sum of $60,000.}

(b) For each of Mr Cave’s children, $15,000. (c) To Ms Denton, $10,000.

(d) To Mr Brian Cave, $10,000.

(e) There are also in addition payments itemised later in the sentence and agreed by Corrections to be appropriate additional payments.

(f) I reserve my decision as to the amount payable to Mr P pending further information on the extent of emotional harm suffered by him.

[9] That is the summary that I am now going to spell out in more detail.

Background

[10] The loss of Mr Cave has been felt acutely by a number of people. I have victim impact statements from Sophie Harris, from a Osiris Cave, from Brian Cave, Gail Denton, Mr P and the Reverend Allan Wasley.

[11] I also have an affidavit from Lee-Anne Milne, the investigations manager, which addresses Corrections’ efforts to remedy its offending. I have received a report from a restorative justice meeting which was held just yesterday, 6 December. The report from that conference indicates that Corrections sincerely apologised to the Cave family and offered to take a number of actions to address the harm resulting

_{from its offending.}

2 Department of Labour v Hanham & Philp Contractors Ltd (2009) 9 NZELC 93, 095 (HC)[2008] NZHC 2076; , (2008) 6 NZELR 79 (HC) (“Hanham & Philp”).

Purposes and Principles

[12] In sentencing for health and safety offending, s 51A of the HSEA obliges me to apply the Sentencing Act 2002. Without limiting the application of the Sentencing Act, I must have particular regard to:

(a) ss 7-10, including the purposes and principles; (b) ss 35 and 40;

(c) the degree of harm;

(d) the defendant’s safety record; (e) any guilty plea;

(f) remorse and co-operation demonstrated by the defendant; and

(g) any remedial action.

[13] The object of the HSEA, as put by the High Court in Department of Labour v Hanham & Philp Contractors Ltd, is “achieved by a systematic approach to the promotion of health and safety”.3 This means that I have given significant weight to the purposes of denunciation, deterrence and accountability for harm done.4 These are particularly important purposes in the present circumstances where no financial

penalty can be imposed on the defendant. It is important to deter the defendant from similar failure in the future.5

[14] In sentencing the defendant, I have regard to the principles set out in s 8 of the Sentencing Act, in particular to take into account the degree of culpability of the defendant which in health and safety cases is governed by varying bands of

_{offending. I also take into account the effects of the offending on you, the victims,}

3 _{Hanham & Philp, above n 2, at [17].}

4 _{At [40].}

5 Sentencing Act 2002, s 7(f).

which has been presented to the Court in the form of your victim impact statements.6

I have considered the seriousness of the type of offence in comparison with other offences and the general desirability of consistency in sentencing levels.

_Reparation

[15] In the Department of Labour v Hanham & Philp Contractors Ltd a full bench of the High Court described the three step process in sentencing for health and safety offending. The three steps are:7

(a) assessing the amount of reparation; (b) fixing the amount of the fine; and

(c) making an overall assessment of the proportionality and appropriateness of the total imposition of reparation and fine.

[16] Of these three steps reparation is the principal focus. Such a sentence is designed to compensate a victim (within the meaning of that term in s 4 of the Sentencing Act) who has suffered as a result of the offending:8

(a) loss of or damage to property; (b) emotional harm; or

(c) loss or damage consequential on any emotional or physical harm or loss of, and damage to, property.

[17] WorkSafe submitted that the following reparation awards are appropriate:

(a) to Mr Cave’s widow, Sophie Harris and their four children, an award between $110,000 and $125,000 with specific awards in respect of the

_{children to be held in trust;}

6 _{Sentencing Act 2002, s 8(f).}

7 _{Hanham & Philp, above n 2, at [80]; see also R v Bishop [2016] NZHC 494 at [11].}

8 Sentencing Act 2002, s 31(1).

(b) to Osiris, Mr Cave’s child from a previous relationship, an award of

$15,000 to be held in trust;

(c) to Mr Cave’s parents, an award of $20,000 to be apportioned between them; and

(d) an award in relation to Mr P.

[18] I am of course reserving the aspect of this sentence that relates to Mr P for reasons I will express later.

[19] In making those submissions, WorkSafe referred to recent reparation awards in the following cases: R v Steelcon Construction Ltd;9 WorkSafe New Zealand v Oropi Quarries Ltd;10 WorkSafe New Zealand v Thompson;11 WorkSafe New Zealand v Corboy Earthmovers Limited;12 Maritime New Zealand v Talley’s;13

_{WorkSafe New Zealand v Cathedral Cove Dive Limited;}14 _{R v New Zealand School}

of Outdoor Studies Ltd;15 and Department of Labour v Pike River Coal Ltd.16 Each of these cases were health and safety prosecutions involving a fatality and in each instance the Court considered a reparation award of or exceeding $100,000 would be

_appropriate.

[20] Relying principally upon Department of Labour v Public Trust (as trustee of the Mangaheia Trust)17 and Oropi Quarries,18 Corrections submitted that a global figure of $75,000 should be awarded and apportioned between all of the victims, with portions provided to Mr Cave’s children protected in some way. Corrections also disputed that Mr P was a victim for the purposes of the Sentencing Act 2002 and

_{consequently for the apportionment of this amount.}

9 _{R v Steelcon Construction Ltd [2016] NZHC 494.}

10 _{WorkSafe New Zealand v Oropi Quarries Ltd [2016] NZDC 10755.}

11 _{WorkSafe New Zealand v Thompson [2016] NZDC 8350.}

12 _{WorkSafe New Zealand v Corboy Earthmovers Limited [2016] NZDC 22290.}

13 _{Director of Maritime New Zealand v Talley’s Group Ltd [2015] NZDC 7361.}

14 _{WorkSafe New Zealand v Cathedral Cove Dive Limited [2016] NZDC 14661.}

15 _{R v New Zealand School of Outdoor Studies Ltd [2016] NZDC 3081.}

16 _{Department of Labour v Pike River Coal Ltd [2014] DCR 32.}

17 Department of Labour v Public Trust (as trustee of the Mangaheia Trust) DC Gisborne

_{CRI-2007-016-003496, 4 June 2008.}

18 Oropi Quarries, above n 10.

[21] In establishing the global sum, Corrections contended that I should have particular regard to the following facts:

(a) Corrections was not an industry participant operating in or profiting in a hazardous environment.

(b) Various exacerbating features which were present in other HSEA

sentencing decisions were not present in this case.

(c) Corrections had offered to make amends and provide support to

Mr Cave’s family.

[22] As reparation is compensatory, it is determined with reference to the consequences of the offending for its victims. In my earlier decision I indicated that I considered it was Corrections failure to meet its s 15 duty which contributed to

_{Mr Cave’s death.}

_{[23] Determining reparation for loss of life is by no means an easy task.}19 _It

involves placing a monetary value on that loss which can only ever fall short of truly reflecting the grief felt by you, Mr Cave’s family and his absence from your lives. So reparation is designed to give a measure of recognition to the loss in the best way that Courts are capable of doing, because we are never capable of doing it to the

_{extent that you will feel is necessary.}

[24] The amount ordered must take account of the statutory framework, offers of amends and the offender’s financial capacity.20 Offers of amends extend to include all efforts to address the effects of the offending on the victims.21 Where those efforts are genuine and capable of fulfilment, the offender is entitled to a discount to

_{the extent of any financial payments made.}22

19 Department of Labour v Icepack Coolstores Ltd DC Hamilton CRI-2009-019-011343, 15

December 2009 at [43]; Department of Labour v Sir Edmund Hillary Outdoor Pursuits Centre of

_{New Zealand [2010] DCR 26 at [85].}

20 _{Hanham & Philp, above n 2, at [40]: see also R v Haddon [1990] NZCA 252; (1990) 6 CRNZ 508 (CA) at 510.}

21 _{Hanham & Philp, above n 2, at [42].}

22 At [45].

[25] The task of setting reparation for emotional harm in a case such as this, does not simply involve ordering the same amount given in other cases involving a fatality. Each case must be judged on its particular circumstances. While certain cases may give a broad indication of an appropriate figure, it is unhelpful to pick apart those decisions and try to pair particular features with a particular level of reparation. There is not and cannot be a tariff for the loss of life or grief.

[26] In respect of the cases referred to me by WorkSafe, weight was given in those cases to particular features not present in this case. However, in this case there is a feature not present in any other and that is the unique position that Corrections was in, in relation to Mr Cave and to Mr P.

[27] In many ways this case cannot be directly comparable to others due to the following facts:

(a) Corrections placed the offender in the agency;

(b) Corrections determined the appropriateness of the agency;

(c) Corrections has a statutory responsibility to supervise offenders while in community work agencies and inherent in this is the need to monitor both the agency and the offenders; and

(d) Corrections is able through rules and systems to materially influence the type of work undertaken, how it is undertaken and by whom.

[28] Very significantly, in my view, Mr Cave and Mr P and other offenders had no right of refusal to be in that place of work undertaking the work that they were expected to do. So being under a sentence of community work meant that Mr Cave and Mr P and others are required to comply with the probation officer’s instructions and are completely dependent on probation officers to ensure that they are placed in a safe work environment and are only being required to undertake safe work tasks.

[29] Mr Cave and you had a right to expect that Corrections employees would not place him in an unsafe situation and I give significant weight to the unique

vulnerability of Mr Cave and the consequent high level of trust that Mr Cave and you would have placed in Corrections and these are features in my view which exacerbate the emotional harm.

[30] Corrections paid $1,711 for airfares for three family members to attend Mr Cave’s funeral. I have got no details being provided to me as to precisely who those members were. It has also offered to arrange counselling for Ms Harris and a gift basket on the birth of her daughter. Not surprisingly in my view both of the latter offers were declined. Corrections also provided Ms Harris with non-monetary support by giving her an ACC information pack and applying to cancel her own community work sentence.

Sophie Harris

[31] Now, Sophie I am going to come to you. You have lost your partner and the father of your children. At the time of your partner’s death, you were pregnant with your fourth child. According to your victim impact statement which I heard this morning, you had experienced a spiral of self-harm, pain, depression and loneliness, and you have bravely told me that this has caused you to resort to abusing drugs.

[32] As a result your relationships with your children, family and Mr Cave’s family have suffered, but you have courageously sought and undertaken significant rehabilitative treatment. You have spoken to the Court through your statement about the loss to your children all of whom are under the age of six years old. They will never have a father in their lives as they grow to become adults themselves. Your youngest child, who was born after Mr Cave’s death, will never have an opportunity to meet her father and they have been affected by the necessity for you to be separated from them for a while, while you have undertaken your rehabilitative treatment. I can only hope that other members of Mr Cave’s family can be charitable about what you have suffered.

Osiris Cave

[33] I turn now to Osiris. Osiris’ mother read out a victim impact statement and

Osiris, Mr Cave’s eldest child sat alongside her as she did. She has described the

changes in Osiris’ personality and demeanour and essentially he is a very sad and emotional child. For Osiris, he will never have his father there at the significant milestones in his life either. There are also comments in the statement about the financial implications for Osiris’ mother, but no evidence quantifying these amounts is before the Court.

Mr Cave’s parents

[34] I turn now to Mr Cave’s parents. Mr Cave spoke of the loss of his son and the subsequent breakdown in his relationship with Ms Harris and his grandchildren. He has suffered emotional stress resulting in isolation, drinking and anger. He too estimated a number of financial losses, but I am happy to say that today I received a table of those costs amounting to the sum of $17,412.39 on funeral expenses, travel to New Zealand to assist Ms Harris and her children and other associated costs. I am equally happy to be able to report that Corrections have indicated today that they will meet those costs in their entirety.

[35] Mr Cave’s mother, Gail Denton, described to the Court that the loss of her son was akin to losing a limb. She was hospitalised due to high blood pressure following her son’s death and she told me she had to take at least three months off work due to the emotional effects.

[36] Both of Mr Cave’s parents told me that he was such a strong influence in the lives of all of you. That his death has fractured the family. I hope that can be healed.

[37] There are days Ms Denton, you told me when you are unable to face the world and you will always struggle with that loss.

[38] The appropriate approach in cases of this nature is to apportion a global sum of reparation between family members and I find that given the unique circumstances of this case the global sum is to be apportioned to Ms Harris $60,000; to each of Mr Cave’s five children $15,000; Ms Denton $10,000 and Mr Brian Cave

$10,000.

[39] These amounts do not take into account the assistance Corrections has provided thus far to Mr Cave’s family and promised to provide at restorative justice. I do not propose to reduce the global sum by these amounts. Corrections agreed at restorative justice to pay expenses incurred by the Cave family over the past two and

_{a half years and I consider that that payment already made is part of this agreement.}

_{[40] In the case of R v Steelcon Construction Ltd,}23

_{the Court ordered that a}

reparation award to a child be held in trust until she reached the age of 18. It has been agreed by counsel and I consider it is appropriate that this approach be taken in this case also. The awards to each of Mr Cave’s children are to be held in trust until they reach the age of 18. Ms McKenzie will hold the amount awarded to Osiris Cave until the trust is established and Mr Brian Cave will hold the amount ordered to

_{Mr Cave’s other four children until their trust is established.}

_{Mr P}

[41] I deal now with Mr P. Mr P described in his victim impact statement the ongoing and physical emotional effects of Mr Cave’s death. He said that he had sustained back injury when he tried to lift the log off Mr Cave. He said he has suffered post-traumatic stress disorder, depression, rage and anger as a result of the incident. Essentially, he blames himself for Mr Cave’s death. Emotional harm has negatively affected his employment and his relationships with friends and family. He has engaged in self-destructive behaviour and has re-offended since Mr Cave’s death.

[42] Corrections submitted that Mr P does not qualify as a person to whom the Court can order Corrections to pay reparation. In support, Corrections referred to the charge, particularised to refer to Mr Cave only, the non-identification of Mr P as a victim in the summary of facts and the focus in my decision to Mr Cave.

[43] Corrections rejected the proposition that Mr P was offended against in the same manner as Mr Cave and contended instead that the offence was committed

_{solely against Mr Cave. Further, Corrections did not accept that Mr P might be}

23 R v Steelcon Construction, above n 9.

regarded as a surviving victim of Mr Cave’s accident because they said he was not in the danger zone.

[44] Corrections argued that if I do find that Mr P is a victim he should be allocated a small global figure of reparation.

[45] WorkSafe, on the other hand, contended that Mr P was a victim because the relevant practicable steps were applicable to all offenders on community work including Mr P. WorkSafe reviewed the emotional harm that Mr P says he has suffered.

[46] Corrections is correct in its submission that reparation cannot be awarded in respect of a person who has solely suffered emotional harm, unless that person is a

_{person against whom the offence was committed and Mr Nathan referred in his}

_{submissions today to the leading case of Kapa v R.}24

_{This is the effect of the}

_{definition of victim in s 4(1)(a) of the Sentencing Act 2002.}

[47] If Mr P was solely a person who suffered emotional harm, he would not be entitled to reparation. However, I consider that Mr P was more than a bystander. Though the charge was particularised with reference to Mr Cave, Mr P was a person in my view, against whom an offence was committed for the reasons submitted by WorkSafe. He was present and he was working under the same conditions as

_{Mr Cave when Mr Cave died.}

[48] In Lyttleton Port,25 the Court did not award reparation to an employee who suffered emotional harm following the death of a colleague on the ground that he was not a victim. Mr P’s position, however, is more akin to that of surviving victims

_{where the victims were at risk, but not physically harmed.}

[49] Contrary to what was submitted by Corrections, it is, in my view, unhelpful to rely on a distinction between Mr P and Mr Cave’s duties while cutting up the log. Mr P was equally at risk as Mr Cave. Mr P was not in the danger zone as the log

_{gained speed by virtue of him realising the danger and moving out of the log’s path,}

24 Kapa v R [2012] NZSC 119.

and it is in Corrections’ favour that he was not physically injured, but this does not obviate the fact that he was an active participant in hazardous activity being placed there by Probation. He was not simply a witness to the accident.

[50] I have to adjourn the sentencing in respect of Mr P as a victim because I have not been provided with the relevant evidence as to his assertion that he has suffered post-traumatic stress disorder and I do so until such time that evidence is available to the Court.

Starting Point

[51] I turn now to fix the amount of the fine and to address the starting point. The fine is directed to the purposes of denunciation that is saying it was wrong, deterrence that is stopping people from replicating that behaviour, and accountability, holding the offender to account. It is determined with reference to

three broad categories of culpability. These are:26

(a) low culpability which requires a fine of no more than $50,000;

(b) medium culpability which requires a fine of between $50,000 and

$100,000; and

(c) high culpability requires a fine of between $100,000 and $175,000. [52] It is only in cases of extremely high culpability that a fine higher than that

will be appropriate.

[53] As discussed in Hanham & Philp, culpability is to be assessed with reference to factors such as:27

_{(a) Identification of the operative acts or omissions.}

26 Hanham & Philp, above n 2, at [47].

(b) An assessment of the nature and seriousness of the risk of harm, as well as the realised risk.

(c) The degree of departure from standards prevailing in the relevant industry.

(d) The obviousness of the hazard.

(e) The availability cost and effectiveness of the means necessary to avoid the hazard.

(f) The current state of knowledge of the risks and of the nature and severity of the harm which could result.

(g) The current state of knowledge of the means available to avoid the hazard or mitigate the risk of its occurrence.

[54] Many of these factors have been addressed in my earlier decision of

22 September.

[55] WorkSafe contended that the number of practicable steps is indicative of Corrections’ culpability and referred to a number of cases where a significant number of practicable steps were available.

[56] Corrections disputed these cases represent similar offenders committing similar offences in similar circumstances solely based on the fact that those cases, like this one, involved a significant number of practicable steps. More weight should be given, according to Corrections, to cases with factual similarities such as Public Trust.28

[57] I agree with Corrections. In my earlier decision, I treated some of the practicable steps as requisite components of other practicable steps. Corrections’

_{systemic failure could have been particularised in a number of ways. It is not the}

28 Public Trust (as trustee of the Mangaheia Trust), above n 17.

number of the practicable steps that is the relevant consideration, but the extent of the failure that that number represents. Here what the number of practicable steps demonstrates is that Corrections failed on a systemic basis to address the risk that its employees would place offenders in at unsafe work sites. To the extent that the cases referred to by WorkSafe demonstrate a similar systemic failing, I regard them as relevant.

[58] It is noted in my earlier decision the potential harm risked by Corrections’ failure was capable of extending to harm of a serious nature including severe laceration and death. Mr Cave’s death was a realisation of that risk.

[59] The next factor identified by the High Court in Hanham & Philp was the degree of departure from standards prevailing in the relevant industry. This factor is difficult to apply in this present case. By virtue of Corrections’ unique position as the only organisation in New Zealand with responsibility for arranging and administering community work sentences, there are no industry standards as such. But I accept the submission made by Mr La Hood today that Corrections is not dissimilar to any large organisation responsible for the welfare of vulnerable persons in a variety of hazardous places and activities. In any event, Corrections systemic failure can only be regarded as a clear departure from the necessary standards.

[60] The next factor I must consider is the obviousness of the hazard. I have already found that it was reasonably foreseeable that probation officers’ conduct when placing offenders within an agency may expose offenders to harm. While

‘obviousness’ should not be determined through hindsight, that safety failings by Corrections employees might harm offenders was certainly a risk that was predictable at the time of Mr Cave’s death.

[61] Finally, I consider together the availability, cost and effectiveness of the means necessary to eliminate and mitigate Corrections employees conduct as well as the state of knowledge available to avoid the hazard or mitigate the risk. The means to address the risk posed by Corrections’ employees’ conduct in this case could be addressed primarily through adequate communication, adequate documentation and

adequate training. None of these measures presents too onerous or costly a burden in my view.

[62] As submitted by WorkSafe, having in place adequate systems and training to ensure that employees are conducting themselves appropriately is a primary requirement of the s 15 duty. Corrections was aware that if probation officers created the opportunity for power tool use and high risk work, offenders undertaking work in such circumstances will likely face harm of a severe nature. This was indicated by the attention given to power tool use in high risk work in the context of community work centres.

[63] Of further relevance is that Corrections was and remains in a unique position due to probation officers’ statutory responsibility to supervise offenders. This represents the level of control Corrections has over offenders and their workplace environments. Essentially offenders are entirely dependent on Corrections to set safe parameters at any site at which they are required to serve their sentence.

Starting point: conclusion

[64] WorkSafe submitted that the defendant’s culpability is in the high band and a starting point of $130,000 to $150,000 is appropriate in this case. Again referring to the Public Trust case, Corrections contended that its culpability is more appropriately described as at the higher end of the medium band, being between

$90,000 and $100,000.

[65] I again do not accept that all of the cases cited by the prosecution are the most analogous to the present case. Here the failure to take the practicable steps can be best described as systemic rather than wilful. Nonetheless, I consider that the unique vulnerability of offenders, Corrections’ heightened responsibility to them and the fact that Corrections’ ignorance of the risk Mr Cave faced was due to its own flawed processes meant that Corrections’ culpability sits within the high band.

[66] Several of the cases referred to me are relevant in support of such a level of culpability. In Lyttleton Port Company Ltd, an employee died when a scissor lift toppled. While the prosecution in that case concerned a different section of the

HSEA, there was a systemic failure in communication within the company

_{comparable to the systemic failure within Corrections. A starting point in that case}

_{was $120,000. Most relevant, however, is WorkSafe v Idea Services Ltd.}29

_While

the factual circumstances here are complicated by the involvement of a third party, Idea Services provides an example of comparable systemic failing resulting in the fatality of a vulnerable person and in that case Judge Binns assessed the culpability

_{as high and adopted a starting point of $120,000.}

[67] Taking the Hanham & Philp factors and in particular the unique circumstances of this case, I find that Corrections’ culpability is in the high band. The defendant’s failure meant that Mr Cave and Mr P were totally dependent on them and suffered as a result. The result in Mr Cave’s case was the most serious result possible: the loss of life. I adopt the starting point of $120,000 to reflect this

_culpability.

Aggravating and mitigating factors

[68] No aggravating factors were identified by WorkSafe. However, WorkSafe accepted that Corrections is entitled to a reduction to reflect reparation ordered and its lack of previous relevant convictions. WorkSafe referred to Department of Labour v Easy Form Roofing Products Ltd30 where Duffy J held that a maximum discount of between 20 to 30 percent would be available in a case where the mitigating factors of offer of reparation, remedial action, a favourable safety record and co-operation with

the investigation were present. For Corrections, WorkSafe submitted an overall

_{reduction of no more than 20 percent is appropriate.}

[69] Corrections submitted that a 15 percent deduction be applied to take into account reparation and has invited me to consider a further 10 to 15 percent

_{reduction for the following mitigating factors:}

_{(a) Its favourable safety record, it is unblemished.}

29 _{WorkSafe v Idea Services Ltd [2015] NZDC 15922.}

30 Department of Labour v Eziform Roofing Products Ltd [2013] NZHC 1526 at [58].

(b) Its proactive co-operation with WorkSafe during the investigation and in improving its systems subsequently.

(c) Corrections’ attempt to confine its defence as much as possible by admitting several of the practicable steps.

(d) The genuine remorse that Corrections expressed yesterday at the restorative justice conference.

(e) The substantial remedial action to prevent the recurrence of a similar accident.

Good safety record

[70] WorkSafe acknowledged Corrections’ unblemished record and conceded it would be entitled to a discount for previous good character; I assess the discount for that to be at 5 percent.

Co-operation and remedial action

[71] I turn now to the co-operation and remedial action. Corrections did make a number of admissions before the trial. However well-intended, Corrections’ attempt to confine its defence conceptually did not assist in reducing the issues at trial. I consequently cannot give specific weight to these admissions, except insofar as they reflect what has been a general attempt by Corrections to co-operate in the investigation and subsequent trial.

[72] The extent to which Corrections has properly remedied its offending, still remains an issue, but Corrections and WorkSafe have informed me this morning that Corrections has undertaken considerable remedial action and they will be able to work together to conclude that they believe to WorkSafe’s satisfaction.

[73] Darius Fagan, the chief probation officer, filed an affidavit in which he set out the steps taken by Corrections to remedy its offending and specifically the content of the order that was undertaken by it. He emphasised that as a result of Mr

Cave’s death, Corrections has altered its approach to community work agency placements. Under this new approach Corrections considers itself solely responsible for setting the parameters for work environments and work tasks for community work at agencies. As such it does not encourage agencies now to make their own assessments of hazards or activities and they provide them with guidance on what activities are or are not prohibited. Instead, now agencies are told that all tasks must be approved by Corrections.

[74] So your family member, Mr Cave, his death has left a legacy. I consider that Corrections, as a result of those actions is entitled to a moderate 5 percent reduction to reflect the level of its co-operation and its attempts to remedy its offending.

Remorse and attempt to make amends

[75] This is, as Mr Nathan said in his submissions today, a terribly fraught area when an organisation is attempting to preserve its rights within an adversarial process and at the same time do right by those who are victims before it is proven to the satisfaction of the law that they are victims, but there are ways and means of agencies dealing with that tension.

[76] It has to be said that Corrections’ response in the provision of some assistance prior to the restorative justice conference yesterday was at the very lowest end of managing that tension.

[77] Yesterday, Corrections sincerely apologised to the family and offered:

(a) to cover the set up costs and contribute to family trust to benefit Mr

Cave’s children;

(b) to cover costs incurred by the family over the last two and a half years;

(c) to discuss with WorkSafe about how to offer a better process for assisting a victim’s family;

(d) to consider how to provide a memorial seat and plaque at the site of

Mr Cave’s death; and

(e) to acknowledge the sadness of Mr Cave’s children and I quote on the report, “Possibly in a letter”.

[78] I accept that Corrections’ offers were a sincere attempt to better make amends and I accept that it has demonstrated genuine remorse and I consider it is entitled to a further 5 percent reduction for that.

Other aggravating and mitigating factors

[79] I find there are no other aggravating or mitigating factors, such as a credit for a guilty plea, applicable in this case.

Aggravating and mitigating factors: conclusion

[80] I therefore accept that Corrections is entitled to a 15 percent reduction to reflect the reparation ordered as well as a 15 percent reduction to reflect its previous good record, its co-operation and its remorse. That is a total of a 30 percent discount which is within the range referred to in Department of Labour v Eziform Roofing Products Ltd.

[81] Taking into account these reductions to reflect aggravating and mitigating features, the final fine that I would have awarded, had I been able to, is $84,000.

[82] I reserve any decision in respect of the amount to be awarded to Mr P.

Jan-Marie Doogue

Chief District Court Judge

Appendix: Practicable Steps

The Admitted Steps

(a) Probations Officers were sufficiently trained in health and safety relevant to community work placements, so as to adequately understand the principles of hazard management, including physical controls, PPE, training and competency requirements (“Practicable Step (a)”);

(b) Probations Officers carried out a sufficient risk and hazard assessment considering the type of work to be undertaken and suitability of both the Agency and the Offender (“Practicable Step (b)”);

(c) Probation Officers, when they had the opportunity to become aware that there may have been changes to the type of work that could materially affect the hazard and risk assessment undertaken, conducted a new risk and hazard assessment (“Practicable Step (c)”);

(d) An Agency’s health and safety systems were assessed and recorded as part of reaching agreement with an Agency (“Practicable Step (d)”);

(e) The Agency Handbook set out all appropriate health and safety requirements and expectations (“Practicable Step (e)”);

(f) The Agency Handbook was provided to all Agency sponsors at the time of signing the Three Way Agreements (“Practicable Step (f)”);

(g) The Agency Handbook set out explicit instructions on what to do in special circumstances, including illness of the sponsor (“Practicable Step (g)”);

(h) The scope of work to be undertaken during community work placements expressly excluded hazardous work (“Practicable Step (h)”);

(i) Clear instructions were provided to Probation Officers outlining what to do if it was recognised that the scope of work had changed (“Practicable Step (i)”);

(j) A power tools policy for community agency placements was implemented, including what could be used, by whom and in what circumstances (“Practicable Step (j)”);

(k) The power tools policy was communicated to and understood by Probation

Service employees (“Practicable Step (k)”);

(l) The power tools policy was communicated at the induction of offenders and during the monitoring of the Agency and Offenders (“Practicable Step (l)”);

(m) Clear instructions were provided to Probation Officers outlining what to do if it was recognised the power tools policy was not being adhered to (“Practicable Step (m)”); and

(n) The Agency Handbook set out the power tools policy (“Practicable Step

(n)”).

The Disputed Steps

(o) Ensure that all community work agency sponsors know and understand what is required of them while supervising offenders (“Practicable Step (o)”);

(p) Ensure that each community work agency and the offender understand what is required of them in terms of health and safety obligations and the expectations of Probation in terms of supervision (“Practicable Step (p)”); and

(q) Ensure that the scope of work to be undertaken including any exclusion on hazardous work is communicated to both the community work agency and the offender prior to the commencement of the placement (“Practicable Step (q)”).