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District Court of New Zealand |
Last Updated: 27 July 2020
EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS].
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IN THE DISTRICT COURT AT QUEENSTOWN
I TE KŌTI-Ā-ROHE KI TĀHUNA
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CRI-2017-059-000308
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DIRECTOR OF CIVIL AVIATION
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Prosecutor
v
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MURRAY KELVYN SARGINSON
Defendant
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Hearing:
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13 August 2018
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Appearances:
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S Bishop for the Prosecutor
G Gallaway and J Lill for the Defendant
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Judgment:
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30 October 2019
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NOTES OF JUDGE B A FARNAN ON SENTENCING
[1] The defendant, Murray Kelvyn Sarginson, appears for sentence, having been found guilty at trial in respect of two charges under the Health and Safety at Work Act 2015 (“the Act”).
[2] Mr Sarginson is represented by Mr Gallaway and Mr Lill. Ms Bishop appears for the prosecution.
[3] The charges were laid under s 47 of the Act. The two charges relate to, firstly, the defendant’s position as a person conducting a business or undertaking (“PCBU”), namely the PCBU Ag-Works, in that he acted recklessly as to the risk of serious injury or death and thus exposed the workers to the risk of death or serious injury. The second charge relates to the same duty as a worker.
DIRECTOR OF CIVIL AVIATION v SARGINSON [2019] NZDC 21779 [30 October 2019]
[4] The charges were laid following a helicopter crash, on 30 April 2016, which resulted in the death of [the deceased]. I found the charges proven, after a lengthy defended hearing, and convicted the defendant in his capacity both as an officer of Ag- Works South, referred to as the PCBU Ag-Works, and as a worker.
[5] The maximum penalty for this offending is five years’ imprisonment and/or a fine not exceeding $300,000 in respect of the defendant’s position as a worker; and five years’ imprisonment and/or $600,000 fine for his offending as an officer of Ag-Works.
[6] I have been greatly assisted in this sentencing today by counsel’s helpful written submissions, and also the oral submissions today. I have read the detailed written submissions before coming to Court. If I have not referred directly to a particular submission, that does not mean that I have not considered it.
Further time for submissions in respect of issue of consequential loss
[7] Today Ms Bishop has orally confirmed the prosecution’s position with respect to the consequential loss claim, which is effectively the ACC shortfall figure claimed. She has, she told the Court, reviewed the amount of claim in light of the defence submissions, and now submits the amount claimed should be $312,130.48.
[8] Ms Bishop also referred to the Oceana Gold (New Zealand) Ltd v WorkSafe New Zealand decision, in which Mr Gallaway was counsel, I understand.1 In that case, at para [86], the defence submitted the statutory shortfall (until the child in question in that case reaches 18), of lost earning would be $121,275.36.2 Ms Bishop submits that it is not clear how that figure was calculated.
[9] In the current case, defence counsel calculates, on behalf of the defendant, a sum of $82,574.75 as being payable. This figure is less than in the Oceana case, which was for a much younger child. The defence seek more time to consider this particular issue.
1 Oceana Gold (New Zealand) Ltd v WorkSafe New Zealand [2019] NZHC 365.
2 At [86].
[10] At the end of the day, it may all be resolved in terms of actual payments able to be made when the Court considers the defendant’s financial position, but in my view the Court should nevertheless make a determination on a principled basis of the amount that should be payable under s 32(1)(c) Sentencing Act 2002, as if no issue of financial ability to pay were present.
[11] Counsel agree, as do I, that this issue can be dealt with separately by the filing of further submissions, but the sentencing today can still proceed in respect of the other issues.
[12] Therefore, in respect of the consequential loss claim, I direct that the defence file further submissions within 21 days, setting out clearly their basis for submitting that the sum of $82,574.75 is the figure that should be paid by the defendant in this case, compared with the more than $121,000 that Mr Gallaway had promoted in the Oceana case as determined by Venning J. That case involved a much older child which meant that the payments covered a much shorter period of time.
[13] The prosecution are to file submissions in response within 14 days. The Court is then to set down a teleconference between counsel and the Court, to ascertain how the matters involving that issue will be progressed.
Facts
[14] In terms of the sentencing for the remainder of the matters, Mr Sarginson, by way of background your business was one operated by way of partnership between you and [the deceased]. The partnership commenced on 13 August 2013 and ceased upon the death of [the deceased] on 13 April 2016.
[15] Ag-Works operated as an earthmoving business. As at the 30 April 2016, the defendant had a 75 percent share in the business, and [the deceased] had a 25 percent share. The defendant and [the deceased] were both responsible for running of the business and the negotiation of contracts. Some contracts were negotiated by them jointly, whilst others were priced, negotiated and managed by one partner exclusively. Both the defendant and [the deceased] carried out earthmoving work.
[16] [The deceased] had been the defendant’s employee from 2008 up to when he joined the partnership in August 2013. He had worked with the defendant for some eight years in total, undertaking earthmoving works at various sites. He was not a pilot. After [the deceased]’s death, Mr Sarginson assumed responsibility for all of the partnership debts.
[17] As at 30 April 2016, Ag-Works had a health and safety policy. At the time of the crash the defendant and [the deceased] had been working on a contract at Mount Algidus Station. The helicopter involved in the crash was a “Robinson R22 beta” (“the helicopter”) which is a light two-seater helicopter with a two-blade main rotor and a two-blade tail rotor. The empty weight of the helicopter was 878 pounds, or 398 kilograms.
[18] The defendant co-owned the helicopter with his nephew, Ben Sarginson. It was used by both Mr Ben Sarginson and the defendant, sharing the allocated hours between overhauls equally. It was generally kept at Aurum Helicopters in Cromwell when being used by Ben Sarginson for his business, and generally on the defendant’s farm in Athol when being used by him.
[19] The helicopter flight manual sets out, inter alia, the weight limits and centre of gravity limits for the helicopter. The maximum gross weight for the helicopter operated by the defendant was 1370 pounds, or 622 kilograms. Section 6 of the flight manual provides that the helicopter must be flown only within specified weight and balance limits. The manual noted that loadings outside of these limits can result in insufficient control for safe operation.
[20] The defendant and [the deceased] had travelled together for work in the defendant’s helicopter on prior occasions. They had also flown together on various recreational trips.
[21] [The deceased] died at the scene of the crash on 30 April 2016. A full autopsy examination was undertaken by the pathologist, Dr Martin Sage, at the Christchurch Hospital mortuary on 2 May 2016. He determined the death of [the deceased] to be
high energy impact injuries to [the deceased]’s chest and pelvis, causing multiple fractures to his ribs and pelvis.
[22] On 30 April 2016, the crash had occurred when Mr Sarginson was flying himself and [the deceased] from their business’s home base at the Athol farm to Mount Algidus Station, which is a high country station situated close to the Wilberforce River in South Canterbury. The defendant and [the deceased] had travelled together to the station by way of helicopter on two previous occasions during the course of their contract with Mount Algidus Station.
[23] As at 30 April 2016, Mr Sarginson and the deceased had missed several days of work at the station due to poor weather. That morning, the deceased had travelled to the defendant’s farm, with arrangements being that they would depart for Mount Algidus Station that day by helicopter. On occasions they also drove to the station.
[24] The defendant loaded the helicopter with various personal baggage items. He also loaded approximately 100 litres of fuel onto the helicopter. The take-off weight of the helicopter was estimated to be 1525.96 pounds, or 692.16 kilograms. This weight included the weight of the helicopter, Mr Sarginson, [the deceased], baggage and the fuel weight. The Robinson R22 helicopter has a maximum allowable gross weight limit of 1367.96 pounds.
[25] At departure, the weather and visibility were good. The helicopter flew for about an hour. At approximately 4000 feet and seven nautical miles east of Lindis Pass on mountainous terrain, the helicopter encountered poor weather and diminished visibility in the form of a cloud cover below the helicopter, which obscured the MacKenzie Basin ahead of the defendant. The defendant elected to undertake a descending spiral manoeuvre, intending to take the helicopter down through a hole in the cloud cover.
[26] During the descent, visibility diminished further. The defendant then elected to bring the helicopter into a hover. The helicopter was unable to sustain a hover, as it was overloaded to the extent that its power was compromised. At the same time, the
poor visibility caused the defendant to lose spatial awareness, and the helicopter sunk downwards, causing it to strike the hillside and crash.
[27] At the time of the impact, [the deceased] was still alive. He left the helicopter and moved down the hill.
[28] The defendant called Ben Sarginson, who attended the scene in his own helicopter. Ben Sarginson brought with him a Mr Casey, who unsuccessfully performed CPR on [the deceased].
Four-step method
[29] Both the prosecution and the defence agree that the usual four-step methodology for sentencing under the Act in this case should be adopted. I will expand on this later. That methodology is from the recent Stumpmaster v WorkSafe New Zealand High Court decision.3
[30] The prosecution submits an emotional harm reparation payment of $120,000 to $150,000 is appropriate, along with the consequential loss of around $300,000, which I will determine at a later date.
[31] In summary, the prosecution has put forward modified Stumpmaster bands applying to the different maximum penalties under s 47 of the Act. These bands include starting points for both fines and imprisonment, which I will also discuss in more detail.
[32] The prosecution submits the appropriate starting point in the current case is between two years and six months, and three years’ imprisonment, which reflects the defendant’s high culpability.
[33] The prosecution accept that personal mitigating factors may reduce the end sentence to a point where alternatives to imprisonment may be considered.
3 Stumpmaster v WorkSafe New Zealand [2018] NZHC 2020.
The prosecution submits that if that is the case, then home detention would be appropriate.
[34] The prosecution also seeks an order that the defendant contributes up to
$80,000 towards the cost of prosecution.
[35] The defence submits that the prosecution has taken an overly punitive approach in the sentencing and sought unprecedented amounts of reparation, other penalties and costs. The defence submit a total of $157,574.75 reparation is appropriate, made up of $75,000 for emotional harm and the remainder by way of consequential loss.
[36] The defence submits a starting point of 12 months’ imprisonment and $100,000 fine is justified to reflect the reckless conduct and the serious outcome. After discounts for mitigating factors are applied, the defence submit an end sentence of four and a half months of community detention, community work and a fine of $75,000 is an appropriate end sentence.
[37] The defence also submits that a contribution towards costs of $25,000 is more appropriate, and that such an amount should be reduced to $10,000 to account for financial capacity.
Approach to sentencing
[38] This would appear, Mr Sarginson, to be the first case of a sentencing under s 47 of the Act, and therefore the Court has had to look at decided cases for s 48 sentencing under the 2015 Act, and cases under the earlier legislation, for guidance.
[39] However, comparisons as such are difficult. What is required by the Court, therefore, is an analysis of, and then an application of, relevant principles, to derive a fair starting point and ultimate outcome for you.
[40] This Court must, in my view, therefore take a first principles approach.
Submissions
[41] Counsel for both the prosecution and the defence submit that the usual sentencing methodology for offending under the Act, as determined by the Stumpmaster decision I have mentioned, should apply. However, the defence have submitted that the guidance from the Stumpmaster decision should be applied with some caution, to the extent that the decision related to PCBUs that are not individuals. Your case is different.
[42] The defence also cautions the Court that the prosecution in this case have taken an overly mathematical approach. The defence reminds the Court of the need to consider s 8(g) Sentencing Act, which sets out that the Court is obliged to impose the least restrictive outcome, and to take into account both ss 13 and 16 Sentencing Act. These sections relate to a fine being the appropriate sentence for a particular offence, unless the purposes and principles of sentencing make a fine inappropriate, and the desirability of keeping an offender in the community.
[43] In particular, the defence also submits that the large fine, being a maximum of
$600,000 for what I have considered to be the lead offence, indicates Parliament had in mind a fine as a suitable way of penalising individuals. Both counsel agree, which I accept, that s 151 of the Act provides guidance to a sentencing at Court. This section applies to offending under s 47, as well as ss 48 and 49 of the Act.
[44] Additionally, the Court must consider the Sentencing Act 2002. There is a specific reference, in s 151(2) of the Act, to ss 7 to 10 Sentencing Act. The prosecution submits that sentencing in a health and safety context would generally require significant weight to be given to the purposes of denunciation and deterrence, and accountability for the harm done to the victim, which in this case extends to the victim’s immediate family, particularly his widow and his son.
[45] On that basis, the prosecution submits sentences imposed for s 47 offences should typically be higher than for s 48 offences within the same culpability bands, as s 47 offences are inherently more serious than s 48 offences. The prosecution also submits, when considering the Stumpmaster bands, the Court should take into account the full range of available sentences and orders.
[46] The prosecution submits while the Court should acknowledge the presumption in favour of fines in s 13 Sentencing Act, the Court should also recognise that the presumption can be displaced where appropriate in the circumstances of the case, and the fact that a fine can be imposed in addition to a sentence of imprisonment, where that is warranted, on the basis, the prosecution submits, the Court can adjust the s 48 Health and Safety at Work Act culpability bands under Stumpmaster, with associated starting points.
[47] The prosecution set out the proposed bands:4
Culpability Bands as proposed by Prosecution in this case
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% of
Maximum
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Individual officer/PCBU
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Other individual
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Low
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0%-17%
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$0-$100,000
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$0-$50,000
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Medium
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17%-40%
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$100,000-$240,000; and/or up to 2 years’ imprisonment
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$50,000-$120,000; and/or up to 2 years’ imprisonment
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High
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40%-67%
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$240,000-$400,000 fine; and/or 2-3 years’ imprisonment
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$120,000-$200,000; and/or 2-3 years’ imprisonment
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Very high
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67%-100%
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$400,000-$600,000; and/or 3-5
years’ imprisonment
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$200,000-$300,000; and/or 3-5 years’ imprisonment
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Bands set out in Stumpmaster for s 48 offending by bodies corporate
4 Prosecution submissions at [83].
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Culpability
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Range
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Midpoint
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% of Maximum
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Low
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$0-$250,000
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$125,000
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0%-17%
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Medium
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$250,000-$600,000
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$425,000
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17%-40%
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High
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$600,000-$1 million
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$800,000
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40%-67%
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Very High
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$1 million - $1.5 million
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$1.25 million
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67%-110%
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[48] For the purposes of this decision today, I refer in particular to the medium band which the prosecution say, for an individual officer or a PCBU, should be
$100,000 to $240,000 and/or up to two years’ imprisonment; for an individual,
$50,000 to $120,000 and/or up to two years’ imprisonment.
[49] In respect of the high culpability band, the prosecution say that a $240,000 to
$400,000 fine should apply and/or two to three years’ imprisonment, or for an individual, $120,000 to $200,000 and/or two to three years’ imprisonment. That is what Ms Bishop submits should apply in this case.
[50] The prosecution submits that the starting points of imprisonment will inevitably be appropriate when culpability is assessed as more than low, particularly given that low culpability offending will necessarily still involve reckless conduct creating a risk of death or harm.
[51] Moreover, the prosecution submits that ss 8(c) and (d) of the Sentencing Act require a starting point near the statutory maximum for offending that falls into the very high culpability band. On that basis, the prosecution submits that a starting point should take into account that the maximum period of imprisonment is the same, regardless of what category of duty holder the individual falls into; the fact that an electronically monitored or community-based sentence will always be able to be considered, where the starting point is a short term of imprisonment; and a starting point of three years’ imprisonment may well result in a sentence short of
imprisonment, where sufficient mitigating personal factors exist, such as in a case like this.
[52] The prosecution submit that this approach would be consistent with sentencing principles under the earlier Act. Though Department of Labour v Hanham & Philp Contractors Ltd was decided in the context of s 50 strict liability offending, it was applied involving s 49, which had the element of knowing or reckless behaviour in the offending.5 For example, the prosecution say that in the case of WorkSafe New Zealand v Salters Cartage Limited, the Court applied Hanham when sentencing the corporate defendant for s 49 offending.6
[53] The Hanham bands were increased proportionately to account for the different maximum penalties. In that case, the company was placed in the extremely high culpability band and a starting point of 16 months’ imprisonment was adopted for the company’s director and co-defendant. The maximum penalty was two years’ imprisonment and/or a fine of $500,000. The starting point was 67 percent of the maximum term of imprisonment.
[54] The prosecution also submits that adopting the bands proposed would not only be consistent with the High Court’s direction in Stumpmaster, but would also reflect the general trends across other regulatory regimes, including the Fisheries Act 1996, and the Maritime Transport Act 1994, relating to dangerous activity involving ships.
[55] The prosecution refer to the recent decision of Judge Gilbert in Maritime New Zealand v Kingipotiki, in which His Honour summarised the jurisprudence as follows:7
I certainly accept the proposition that in cases of high culpability and very high culpability, depending on the circumstances, more significant sentences than a fine should be viewed further as a general proposition. For offences where the culpability is at the lower end, financial penalties as starting points should be viewed as appropriate.
6 WorkSafe New Zealand v Salters Cartage Limited [2017] NZDC 26277.
7 Maritime New Zealand v Kingipotiki [2019] NZDC 10216 at [15].
[56] The prosecution submits caution must be taken in applying other regulatory regimes to the Health and Safety at Work Act, including, as Ms Bishop specifically referred to today, cases involving reckless or dangerous driving. Ultimately, the prosecution submits that the best approach is to adopt the higher Court’s guidance in Stumpmaster.
[57] The defence submits that the Court needs to ensure it does not take an overly punitive approach for an individual as opposed to a corporate defendant. In essence, the defence submits the offending of Mr Sarginson in this case comprised a breach of aviation rules that culminated in a tragic fatal collision. The breaches, the defence submit, are identical in relation to both charges.
[58] The defence focus on two issues: they are Mr Sarginson’s decision to fly through the cloud layer in the weather conditions as the defendant found them to be; and his failing to ensure that the helicopter was safely loaded and subsequently flying with an overloaded helicopter.
[59] The context in which the decisions were made, the defence submits, is critical to the assessment of culpability. Mr Sarginson’s relative inexperience and the manner in which the crash occurred are, the defence submit, particularly relevant factors. The crash occurred while the helicopter was in a hover which shows a precautionary step being taken, albeit too late, immediately prior to the collision, though Mr Gallaway today refers to Mr Sarginson having been in a hover and then moving slightly across the hill.
[60] Also relevant, the defence submits, is the fact that Mr Sarginson was himself seriously injured; he and [the deceased] were friends, business partners and both officers of the PCBU Ag-Works; as well as Mr Sarginson’s genuine remorse, prior good character; and that he worked closely with the [deceased]’s family, supporting them financially and emotionally since the crash - a situation that endures until now and will endure further, I understand.
Discussion
[61] While the prosecution has helpfully discussed the legislative history of the Act and previous guidelines decisions, what is clear is that the genesis of the current legislation was the Pike River disaster, following which the Royal Commission on the tragedy determined that the then legislation was generally fit for purpose, but that amendments were warranted to strengthen work participation and to include directors within the class of persons with responsibility for health and safety.8
[62] In my view, these recommendations did not necessarily have in mind a truly punitive outcome for someone like Mr Sarginson, who himself suffered significantly, both physically and emotionally, from his own health and safety breaches.
Culpability
[63] That being said, I need to assess Mr Sarginson’s culpability. I agree his lead offending is in his capacity as an officer of Ag-Works. That offence has the greater penalty.
[64] The prosecution submits that flying into low-level cloud carries with it inherent risk of a collision with land, as occurred in this case. This necessarily carries a risk of death, which did occur. On that basis, the prosecution submit this factor is extremely aggravating, and made worse by the helicopter being overloaded by 73 pounds.
[65] The prosecution submits that it is patently obvious, even to a layperson, that flying an overloaded aircraft into low cloud creates a risk of death or serious harm. All of these actions were clear departures from the relevant industry standards, which Ms Bishop has detailed more in her written submissions.
[66] The prosecution submit Mr Sarginson had other options available to him, as per Mr Spencer-Bower’s evidence:9
The Court has heard evidence from Mr Spencer-Bower about how a prudent pilot would react to encountering cloud cover:
On encountering the cloud cover in the Mackenzie Basin the pilot’s first immediate decision would have been to seek a clear area to
8 Report of Royal Commission on the Pike River Coal Mine Tragedy (October 2012) Vol 1 at 32 33.
9 Prosecution submissions at [110].
descend below the cloud. This would most probably have been his preferred option as it would keep him on track and avoid a detour. Another option would have been to navigate around the cloud remaining in sight of the surface at all times. This would require more flight time. Another option would have been to land and wait for an improvement in conditions ... Another option would have been to return home or fly to an alternative site or airfield.
[67] This all results, the prosecution submits, in the defendant’s culpability being high or very high, on the basis the defendant was grossly reckless resulting in a death. The prosecution tempers that submission, however, to take into account the defendant’s presence in the helicopter, and he then being seriously injured. The prosecution accepts this factor makes him less culpable than an officer who recklessly exposed workers to risk from a position of comparative safety.
[68] Ms Bishop also accepts, after reading the restorative justice report today, that Mr Sarginson has indeed shown remorse for what occurred.
[69] This results overall, the prosecution submits, to an appropriate starting point being in the two to three years’ imprisonment range, and/or a fine in the $240,000 to
$400,000 range. The prosecution submit a fine alone would be insufficient to meet the relevant purposes and principles of sentencing.
[70] Today, Ms Bishop has accepted that, ultimately, whether or not the Court imposes a fine on Mr Sarginson in addition to any other penalties I impose upon him today, is a matter for the Court to determine, particularly in the light of any financial issues that Mr Sarginson may have.
[71] The defence submits, despite the Court’s conviction decision,10 that flying in the helicopter to a workplace falls on the very fringes of the Act coverage. Mr Gallaway has confirmed that today and commented that, indeed, not many people do travel to work in a helicopter.
[72] On the basis of the offending occurring on the fringes of the legislation, the defence submits that general deterrence is low. This was the defendant’s first flight
10 Director of Civil Aviation v Sarginson [2019] NZDC 2565 [Conviction Decision].
under the new legislation. Prior flights would have been governed by the relevant regulatory regime, Mr Gallaway submits, set out in the Civil Aviation Act 1990 and the Civil Aviation Rules.
[73] However, on this point I agree with Ms Bishop, that had this offending occurred prior to the enactment of the 2015 Act, it still would have been open for the charges to have been laid under the earlier legislation.11
[74] The defence submits, given the relatively unusual circumstances of this offending, the purposes of the Act are neutral in assessing the specific offending in this case. In reality, the Civil Aviation Rules provide protection in relation to the specific conduct of Mr Sarginson.
[75] The defence submits the risk of injury and actual harm in this case must be examined in terms of two failings on the part of Mr Sarginson; the decision to fly through the cloud cover in the limited visibility he encountered; with the weight having some impact, although the defence submit the weight was not an operative cause of the crash and refers to Mr Spencer-Bower’s evidence to support this submission.
[76] However, having heard orally from Mr Gallaway on this point today, it would appear that the defence at least accept that there was the combination of factors of the cloud cover and the weight, which the Court is entitled to consider.
[77] The defence submits that the risk of death or serious harm arising from the crash in this case due to pilot error were only to Mr Sarginson and [the deceased], and that such a risk was only present for a short period of time after the decision to fly through the gap in the cloud was made. The defence submits there was no general risk of a crash occurring in the earlier period of flying, until the cloud cover was encountered.
[78] The helicopter was hovering at the point of impact. The defence submits this shows Mr Sarginson had recognised the difficulty he was in and was trying to reduce the risk as much as practicably possible, i.e. he was trying to take the safest option.
11 Health and Safety in Employment Act 1992.
The defence further submits that the risk from overloading was not realised and the flight was otherwise able to be conducted safely.
[79] The defence submits the fact a death occurred is an aggravating or seriously aggravating factor, but not extremely aggravating as characterised by the prosecution; although Ms Bishop today did perhaps slightly resile from that earlier reference to extremely aggravating.
[80] The defence make the submission on the basis of other cases, which refer to larger numbers of people, more vulnerable workers, or members of the public, being exposed to the risk of harm. Mr Sarginson himself was also exposed to the risk.
[81] The defence submits the degree of departure from prevailing standards in relation to the decision to descend through the gap in the cloud was a minor or moderate departure, and that conducting a mental calculation of weight and balance is not uncommon. This means, the defence submits, that the level of departure from industry standards can be considered as lower in the light of this not being an operative cause of the collision.
[82] A conviction itself will, the defence submits, send a strong message of denunciation. The deterrence, as I have mentioned already, the defence say, is less relevant if such offending poses also as great a risk to the pilot as to anyone else.
[83] The defence likewise refer to various cases and submits guidance can be given to the Court from reckless driving cases, although I agree with Ms Bishop on that point that such cases are of limited relevance in a case such as this.
[84] The various factors that the Courts have regard to in assessing the culpability in reckless driving cases, the defence commented, are well understood, but as I have said, I will effectively put that submission to one side.
[85] The defence, however, do accept that the Court are entitled to consider –
- (a) That the collision resulted in fatal consequences.
[86] The defence submits, finally, that the two failures in flight decision-making resulted in tragic consequences, and are not examples of high level gross recklessness but low to medium level responses to the situation the defendant found himself in.
[87] In terms of starting points, the defence refer to:
[88] The defence accept that while there must be a starting point of imprisonment, or a starting point of imprisonment is justified given the reckless conduct and serious outcome, that does not need to be the end outcome, and, with discounts,
12 R v Nicholson CA397/90, 16 April 1991 per Thorp J.
an electronically monitored sentence can be considered by the Court to be an appropriate response.
General approach to HSWA sentencing
[89] Before I consider the defendant’s culpability, I will now discuss the general approach to health and safety at work in sentencing. As I have discussed, counsel agree that the guidance in Stumpmaster (supra) applies in this case. In that case, the Court adopted a four step approach to sentencing. That was based upon the well-established principles set out in R v Taueki, and became a version of the earlier Hanham guideline decision which related to the earlier legislation.13
[90] The steps that I need to consider in this case are:
- To assess the amount of reparation,
[91] I will now turn to consider the four steps in the sentencing process.
Assess reparation
[92] In respect of step one, the Act does not affect ss 32 to 38A of the Sentencing Act 2002. Section 32 provides that the Court may impose a sentence of reparation if the offender has, through or by means of the offending, caused a person to suffer emotional harm and loss consequential on any physical harm.
13 R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372 (CA).
[93] The sentence of reparation must be a principal focus and is the first main step in the sentencing process. The sentences of reparation and fines serve distinct and discrete purposes. The assessment of reparation must be made taking into account s 32 of the Sentencing Act, including any offer of amends made by the offender and the offender’s financial capacity.
[94] In this case, the prosecution submits that reparation in the region of $120,000 to $150,000 for emotional harm under s 32(1)(b) should apply, with the greater amount claimed for consequential loss under s 32(1)(c) as being appropriate.
[95] I also note that s 12(1) Sentencing Act provides that a sentencing Court must impose a sentence or order of reparation where there are funds available, unless this would result in undue hardship for the offender, or other special circumstances make it inappropriate.
[96] The prosecution refers to various cases to confirm there cannot be a tariff for loss of life or grief. The prosecution, in particular, refer to the decision of Her Honour Judge Doogue in WorkSafe v Department of Corrections case from 201614 which involved the shootings at the Ashburton WINZ office.
[97] The prosecution rely on various further recent cases where a death occurred to support the submission that the appropriate reparation figure should apply to this case. That leads the Court to consider the likely impact on [the deceased]’s wife and infant child, and also largely supported by [the victim]’s victim impact statement, which I have read. The defence acknowledge that emotional harm reparation can in no way compensate the family for the hurt and loss that they have suffered.
[98] The defence also refers to various cases which, the defence submits, supports payments in the range of $75,000 to $110,000. In particular, today, Mr Gallaway has referred me to the Oceana case (supra), in which Venning J referred to payments of between $80,000 and $100,000 as not necessarily being out of line.
14 WorkSafe v Department of Corrections [2016] NZDC 24865.
[99] The cases referred to by the prosecution mostly involve corporate defendants, who are typically insured for these amounts. Such cases often involve voluntary payments made by defendant companies, rather than as a response to Court orders. A specific award which divides up the payment between [the victim] and her son is appropriate, in my view, when I weigh up the contentions of both the prosecution and the defence. I form a view that the comments of Venning J in the Oceana case refer to an appropriate range, being the $80,000 to $100,000 mark.
[100] I determine that an appropriate amount of reparation payable in this case should be $100,000. That should be allocated $80,000 to [the victim], and $20,000 to her son.
[101] That, in my view, acknowledges the financial support which Mr Sarginson has already given [the victim], as well as the financial constraints for him, which I will discuss at the end of this decision. I acknowledge by these comments that Mr Sarginson has assumed the debts owed by [the deceased]’s estate to the partnership, which amount to approximately $254,000.
[102] There is also, in my determining this award, an acknowledgement that, for a victim such as [the victim], there is grief, anxiety and other mental pain and suffering caused by the offending.
[103] In terms of the reparation for the consequential loss, I will determine that, as I have mentioned, at a later time.
Assess quantum of fine
[104] The assessment of a starting point for the fine involves, since the Stumpmaster decision, an assessment of culpability bands, which I have mentioned, of low, medium, high, or very high.
[105] In order to assess an appropriate starting point, therefore, I need to assess the defendant’s culpability.
[106] I have detailed counsel submissions regarding this issue already. The defence submits that, whether or not the defendant fell short of a duty, the extent to which he fell short, is not relevant, as the charge only requires exposure to risk, and recklessness as to that risk. I disagree. I consider that the failure to meet the duty is relevant in assessing the culpability of the defendant’s conduct, and the recklessness of what was reasonably practicable in this situation is, in my view, a helpful measure as to what would not be regarded as reckless or exposing a person to such a risk. I agree with the prosecution’s submission that there is an overlap between the charges, and either concurrent sentences should be imposed, or a conviction and discharge in respect of the lesser charge.
[107] The failings in the current case were twofold - the overloading of the helicopter and the pilot error. The actual harm and risk of injury was the most severe possible. There was a significant risk of harm when the weighting specifications are flouted, such as had happened in the current case. The risk is even greater when combined with a manoeuvre that the expert witness, Mr Spencer-Bower, stated he would not have attempted when he was of the defendant’s level of experience.
[108] As it was held by me, both the loading and the pilot error contributed to the risk. I reject the defence submission that the risk was only for a short period. The risk was present from the moment the helicopter took off improperly loaded, and the risk increased when the defendant attempted to manoeuvre down through the cloud.
[109] The defence submits the defendant attempted to reduce the risk by hovering. However, there were other alternative options available to the defendant to avoid the risk altogether, such as a return to his departure location. The submission related to the risk arising from the overloading the helicopter is rejected. It was stated in evidence that the overloading contributed to the crash by reducing the available power.
[110] Today, Ms Bishop, in her submissions, referred to the notes of evidence to support her submission that it was Mr Spencer-Bower’s evidence that the crash was caused by a number of factors, including the overloading as well as the weather conditions.15 She also submitted that for an act to be causative of a crash, it does not
15 Director of Civil Aviation v Sarginson, above n 10, [Conviction Decision] at [225]; NOE at 611.
have to be the cause, but needs to be a cause. This supports her submission, which she submits is supported by various cases including Her Honour Judge Doogue’s decision in WorkSafe v Corrections (supra).
[111] I agree with that submission, and that is certainly consistent with my recall of the evidence. I agree that the defendant departed from the industry standards in a significant way by flying in bad weather, with a fundamentally flawed weight calculation, and in a manner inappropriate for his experience. It was Mr Spencer-Bower’s evidence that if the helicopter had not been overweight, it could have hovered on-site potentially without incident for some period of time.
[112] I assess the defendant’s culpability as being high and consider that a starting point of around two year and six months’ imprisonment is an appropriate starting point. This recognises the generally relevant purposes and principles of the Sentencing Act, as well as the factors specific to health and safety sentencings.
[113] However, I must also consider mitigating factors. The defendant, as I have mentioned, assumed the deceased partnership debt following a meeting with the family. That occurred before the Judge alone trial.
[114] The prosecution submits there is limited remorse, but I consider that the presence of remorse is not mutually exclusive with defending a charge. The HSWA is, in effect, a regulatory, quasi-criminal regime. As such, charges can be defended while still exhibiting remorse for the effective actions or the harm which eventuated, and that is certainly clear from the restorative justice report, which the prosecution does accept.
[115] It was also clear during the course of the hearing that the defendant had suffered a significant loss with the death of [the deceased], and was supporting his widow who, in turn, has supported him and Mrs Sarginson.
[116] The defendant is also paying reparation, as I have mentioned.
[117] Based on the current submissions, around 15 percent discount is available, in my view, for these factors.
[118] I allow an additional 10 percent for attendance at the restorative justice conference, which can be described as a positive experience for all involved and strongly goes to the defendant’s credit. I agree with Mr Gallaway that the report from the restorative justice conference is really quite extraordinary and is a report that is not often before the Court, to the extent of the support from the victim towards Mr Sarginson as the offender.
[119] The defendant is a first time offender and is entitled to a discount for that factor also.
[120] Taking all of those discounts into account, that would bring me down to an end sentence of around 19 months’ imprisonment.
[121] The pre-sentence report recommends community detention.
[122] The prosecution is not opposed to an electronically monitored sentence, but it submits that a sentence of home detention would be the type of electronically monitored sentence that should be imposed in this case. In any event, I must consider whether or not an electronically monitored sentence is applicable in this case, because of my end point of less than 24 months’ imprisonment.
[123] The defence submit, as I have mentioned, a combination sentence involving community detention, rather than the home detention promoted by the prosecution.
[124] I also note that the majority of those that attended the restorative justice conference supported the defendant making a contribution to the community, even if they themselves did not support him being prosecuted per se.
[125] The PAC report, however, does refer to the defendant effectively denying the offending, but the report does confirm that the defendant continues to operate his earthworks company, and is well supported by family and friends, including [the victim].
[126] It is clear also from the references and other material before me that Mr Sarginson continues to employ other people. Home detention would make it all but impossible for him to continue to operate his business other than undertaking administrative work, and accordingly such a sentence would have an impact not only on Mr Sarginson directly, but on the workers who he continues to employ.
[127] In my view, the purposes and principles of sentencing, of denunciation and deterrence, and the least restrictive outcome, which I must consider, would be met by an end sentence of four months’ community detention, with a daily curfew at the defendant’s son’s address. I understand that his own address is not suitable for electronic monitoring.
[128] The pre-sentence report recommended a curfew between the hours of 7.30 pm and 6.00 am. I have formed a view that a curfew between 9.30 pm and 6.00 am daily is sufficient. There are considerations in respect of Mr Sarginson’s business which I need to consider, and the impact on his workers, and also the considerations of daylight saving.
[129] I also conclude that 350 hours of community work is appropriate in this case. I also intend to impose a fine, but it will be an extremely modest fine in the circumstances, namely being one of $20,000.
Assess ancillary orders
[130] At step three, I need to consider whether or not to impose any other orders.
[131] The prosecution are not seeking any ancillary orders, apart from costs. The prosecution seek an amount of $80,000, being a contribution only towards the direct costs of prosecution.
[132] The defence accept an award in the vicinity of $25,000 could apply, but in this case the Court should reduce that amount to take into account the defendant’s financial means.
[133] The defence, in their submissions, have also referred to the rights of an offender defending any charges they are facing, and Mr Gallaway has referred me specifically to the New Zealand Bill of Rights Act being relevant in that regard.
[134] I also note in this case, as I have mentioned, that the defendant is prosecuted by the state for a regulatory offence which carries a term of imprisonment. The starting point for this offending, therefore, is imprisonment. The defendant is entitled, like any criminal defendant, to put the prosecution to the proof and to defend the charge. Discouraging such a defence on the account of a burdensome cost should, in my view, be discouraged.
[135] In light of the defendant’s financial situation, I must consider what amount of cost is appropriate. The defendant’s ability to meet any financial penalty is a relevant consideration. This factor was affirmed as per the approach in Stumpmaster. That case confirmed a defendant’s financial position is a relevant final consideration.
[136] I consider that it is especially so in the current case, for the following factors. The defendant is a natural person, not a company. He has assumed significant debts of the deceased, and the partnership has been wound up. As Judge O’Driscoll held in WorkSafe v Benchmark Homes Canterbury, there will be times where the defendant’s conduct is so bad it would be appropriate to impose a penalty beyond the company’s means, which would prevent it from continuing.16
[137] I consider there is no proper policy rationale for imposing a crippling financial penalty on an actual person in a case such as Mr Sarginson’s, as the partnership has been wound up and imposing such a penalty would not effect a principled purpose. It would also likely have an impact on the defendant’s ability to continue to support and make reparation payments to [the victim].
[138] Those financial considerations are relevant in terms of all of the financial penalties I need to impose in this case.
Overall assessment
16 WorkSafe v Benchmark Homes Canterbury [2016] NZDC 709 at [188].
[139] Finally, I now turn to the fourth step, the proportionality assessment. At this step, I have to consider the totality principle in relation to the overall sentence, which includes monetary penalties, community detention, and community work. The total sentence must be proportionate to the circumstances of the offending and appropriate to achieve the sentencing principles.
[140] I take into account the fact that I have not yet determined the issue of the consequential loss: however, at worst for the defendant, a sum in excess of $100,000 would be payable; at best for him, a figure as promoted today by the defence of some
$85,000. That, in my view, does not impact on my decision that I am about to give in relation to proportionality.
[141] I do not consider that the combination sentence that I have determined breaches the totality principle, taking into account the facts of this case where [the deceased]’s life was lost, and the maximum penalty provided for in the legislation was a significant fine and/or a term of imprisonment. This is particularly so in the light of the need to consider accountability, denunciation and deterrence, as well as the least restrictive outcome.
[142] I have imposed a lesser electronically monitored sentence of community detention to reflect the defendant’s remorse, the victim’s views, and the extent of the financial penalty, which is not inconsiderable for a natural person without insurance.
[143] Further, I have considered in this case, while I accept there are some concerns about the financial capacity of Mr Sarginson, he is able, as counsel said, to pay financial penalties up to the sum of $243,000, and that is confirmed by the report before the Court from Findex New Zealand Limited, dated 10 October 2019.
[144] The total penalties that I am likely to impose upon the defendant, when I finalise the reparation issue, will not be in excess of that which the defendant, in any event, in my view, will be able to afford.
Sentence
[145] Mr Sarginson, if you would please stand.
[146] In respect of the sentencing today, apart from the consequential loss payment which I am yet to determine at a later time, I make the following orders.
- (a) You are to pay reparation to the victim in the sum of $100,000. That is payable by way of $80,000 to [the victim], and $20,000 to her son.
- (b) You are to serve a sentence of four months’ community detention. That will be served at [address deleted], with a daily curfew from 9.30 pm to 6.00 am.
- (c) You are directed to undertake 350 hours’ community work.
- (d) In the circumstances, I impose a nominal fine of $10,000. I have assessed the fine at that level because I have increased the amount of reparation that I had originally had in mind payable to the [deceased]’s family.
- (e) I am also directing that you pay the sum of $10,000 towards the cost of prosecution.
- (f) I am directing that Mr Gallaway is to file a memorandum within seven days, indicating appropriate timeframes for the payment of the fine and costs I have directed today, and as to when they can be paid.
B A Farnan
District Court Judge
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URL: http://www.nzlii.org/nz/cases/NZDC/2019/21779.html