Electrical Workers' Registration Board v The Building Broker NZ Limited t/a Ekong Solutions New Zealand Limited [2017] NZDC 14558 (5 July 2017)

Last Updated: 28 November 2017

_{EDITORIAL NOTE: NO SUPPRESSION APPLIED.}

IN THE DISTRICT COURT AT WELLINGTON

CRI-2016-054-003588 [2017] NZDC 14558

ELECTRICAL WORKERS' REGISTRATION BOARD

Prosecutor

v

THE BUILDING BROKER NZ LIMITED t/a EKONG SOLUTIONS NEW ZEALAND LIMITED

_Defendant

Hearing:	5 July 2017
Appearances:	A Winsley for the Prosecutor J Langford for the Defendant
Judgment:	5 July 2017

_{NOTES OF JUDGE A-M J BOUCHIER ON SENTENCING}

[1] The company The Building Broker New Zealand Limited t/a Ekong Solutions faces two representative charges pursuant to s 163D(1)(b) Electricity Act 1992. These are clearly matters which Parliament intends to be taken seriously, given that the available level of fine is up to $250,000.

[2] I have the summary of facts in this matter. It is clear that the company was a company which sells and installs ceiling, wall and under floor insulation, heat pumps, ventilation systems, and energy efficient LED lighting. They had been engaged to install various items at various places, according to the summary of facts, including a kindergarten. At the time, the personnel involved in these installations were not properly certified as was required and, therefore, it is sought to fine the company

_{together with solicitor’s costs and Court costs of $130.}

ELECTRICAL WORKERS' REGISTRATION BOARD v THE BUILDING BROKER NZ LIMITED T/A EKONG SOLUTIONS NEW ZEALAND LIMITED [2017] NZDC 14558 [5 July 2017]

[3] The prosecution’s submissions before the Court note the summary of facts. They set out the work being carried out by the two people involved, a Mr McLaren and a Mr Canderle, who is the son of the proprietor of the company. When the company was installing the items, the work carried out was prescribed electrical work. Each of the occasions is then referred to.

[4] Looking at the approach to sentencing, the Court is referred to the usual method of taking a start point for the offending taking into account aggravating and mitigating factors and then with an increase either upwards for aggravating features or downwards for mitigating features. This approach also applies to regulatory offending. Also, the Court has to consider the offender’s financial capacity to pay the fine.

[5] As to the purposes and principles of sentence, the prosecution submit that denunciation and deterrence, both specific and general, and the protection of the community are particularly relevant.

[6] It is submitted that the offending is difficult to police and only comes to light if the electrical work performed is faulty.

[7] Looking at the aggravating and mitigating features of the offending, it is submitted by the prosecution that the following are the aggravating features:

• the extent and the type of the offending, because it involved either carrying out, supervising or certifying the electrical connection of heat pumps carried out by the defendant company’s employees at a number of properties in the ordinary course of the company’s business, and not a one-off situation

• this was work of a commercial nature and the company ought to be aware that its employees would be required to carry out electrical work in the installation of such heat pumps

• the faulty work and risk to safety; there were a number of problems with the electrical work over a number of the properties, which included: water leaks; exposed and unsecured cabling; unsecured units; testing not carried out and/or not recorded on the electrical certificate of compliance; incorrect information being supplied on the electrical certificate of compliance; electrical certificates of compliance not being provided in a timely manner.

[8] Regarding mitigating features of the offending, the prosecution submits that there are none that they are aware of.

[9] Regarding any aggravating or mitigating features of the offender, the prosecutor is not aware of any aggravating features of the offender. The mitigating feature is the guilty plea entered at the earliest opportunity.

[10] The prosecutor then notes that there have only been two cases involving charges under this particular section of the Act; most of the others are under a different section.

[11] The comparable case, it is submitted, is EWRB v Bromley Holdings Ltd,1 which was a firm specialising in farm water pumping, dairy effluent and robotic milking systems. The company there was called out to a farm where a pump had broken down. To fix the issue, the employee needed to remove a pump and fit a temporary one, work that was prescribed electrical work that involved disconnecting a three phase pump from the electricity and reconnecting a single phase pump. Six days later an electrician was called out to the farm to fix another issue, and he noted a wire hanging down the wall where the three phase pump had been disconnected. The ends of the wire had been removed from the motor terminals and left bare. This left the wires in a dangerously live condition.

[12] His Honour Judge Crayton noted the highly dangerous nature of the work for an unqualified person and the extremely dangerous situation and took a start point of

$22,000 by way of fine, with discounts given for remedial action undertaken, previous

good character and an early guilty plea. That case is referred to in the sentencing schedule, and it must be a recent one.

[13] Then there is the case of EWRB v Eden Light Company Limited,2 which is another case where Her Honour Judge Ryan noted that the actual electrical work involved was relatively minor in that case and could be done by a home owner. That was obviously highlighted because of the homeowner exception in the Act and the offending was a one-off error of judgement by the company.

[14] The Board’s submission is that this present case is more on a par with the Bromley case because it was part of a commercial operation, the installation of electrical appliances necessarily involves carrying out electrical connections, and a company that is in that line of work should know the requirements for safely and legally carrying out that work. Some of the work here was faulty, requiring remedial work, and posed a risk to the company’s customers – as I pointed out, a kindergarten.

[15] In this case the submission is that a start point should be in the vicinity of

$30,000 to $35,000 in fines, and an order is sought that 90 percent of the fine be paid to the Board. Solicitor’s costs and Court costs are also sought.

[16] For the defendant, it is submitted that it is accepted that the Bromley case has similarities to the current offending, but it is submitted that the circumstances were worse in the Bromley case because none of the employees at Bromley, which was a pump company, were licensed or registered. There were very serious safety issues, with wiring having been left bare and in dangerously live condition. It is further submitted that in the present case the person responsible for supervising the work,

Mr McLaren was an experienced electrician, having passed his ESTA examination in

November 2007 but not registered until July 2015.

[17] The submissions then refer to the start point of $22,000 across two charges before taking into account other factors. He submits that there should be a lower start point in this case.

[18] The mitigating factor is an early guilty plea.

[19] The Director of the company accepted the assurances of his employee that the licences he held covered the electrical wiring but accepts that he should have properly satisfied himself that this is the case. Whilst not a wholly mitigating factor, it is submitted that this is more mitigating than aggravating; perhaps it is neutral.

[20] The employee who carried out the work, it is submitted, was an experienced electrician who left the company mainly as a result of this matter.

[21] It is now submitted the company engages an inspector to certify any work requiring a specialist’s licence.

[22] The company is not in a strong financial position. Its 2016 balance sheet shows that it was barely solvent as at 31 March 2016, with a relatively small drawing amount taken only by its Director. Pages have been supplied of the balance sheet and the statement of profit and loss, and copies highlighting the wages and expenses have also been presented to the Court today.

[23] There are no previous convictions.

[24] In summary, it is submitted the company is a small company, barely profitable, accepts that it should have taken more care in this field where there is a danger to safety, accepted culpability, pleaded guilty at an early opportunity, and will pay the fine by instalments.

[25] In terms of an appropriate fine, given the assistance with the two cases involved here, I accept that the aggravating features are set out by the prosecution in their submissions. There are no aggravating features of the defendant personally, and the mitigating feature of the defendant company is the early guilty plea.

[26] I am of the view that there should be a start point in this matter of $25,000 per charge. Then, less a 25 percent discount for the early guilty plea plus a further discount for previous good character – which I am not going to percentagise, but taking it down to $16,500 per charge.

[27] So, that is the fine which is so levied on the two charges, and accordingly, conviction and fine is entered in the sum of $16,500 together with solicitor’s fee of

$226 on each charge and Court costs of $130 on each charge.

[28] The company will need to arrange with the fines office to pay the fines off.

A-M J Bouchier

District Court Judge