Worksafe New Zealand v Dykes [2019] NZDC 8890 (10 May 2019)

Last Updated: 6 July 2019

EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS]

IN THE DISTRICT COURT AT TAURANGA

I TE KŌTI-Ā-ROHE

KI TAURANGA MOANA

CRI-2018-070-003627 [2019] NZDC 8890

WORKSAFE NEW ZEALAND

Prosecutor v

PATRICK JASON DYKES

_Defendant

Hearing:	10 May 2019
Appearances:	E Smith for the Prosecutor P Moodley for the Defendant
Judgment:	10 May 2019

_{NOTES OF JUDGE P S ROLLO ON SENTENCING}

[1] Patrick Jason Dykes, you are 46 years of age. You are for sentence today on one charge laid under the Gas Act 1992, s 56B and the Gas (Safety and Measurement) Regulations 2010, reg 9(2). You pleaded guilty to that charge on 1 April 2019 in the Waihi District Court following a sentence indication hearing. The background circumstances of the offending are set out in my sentence indication notes, dated

1 April 2019, and they should be seen as part of and read in conjunction with this sentencing decision.

[2] The charge itself relates to you taking an action knowing it was reasonably likely to cause serious harm to any person or significant property damage contrary to

_{the provision of the Act in that you failed to take all reasonable steps to prevent that}

WORKSAFE NEW ZEALAND v PATRICK JASON DYKES [2019] NZDC 8890 [10 May 2019]

harm or damage. The maximum penalty for that offence is two years’ imprisonment and/or a $100,000 fine.

[3] My sentence indication notes set out the background circumstances of you being commissioned to install a gas fire in the residential property in Tauranga of the two complainant women, who are present in Court, as they were then as victims of the offending. The issues of what happened are set out at para 8 and following in my sentence indication hearing.

[4] A gas fire was provided. It was not designed to be used with LPG. There was no supplier declaration available at the time stating it was safe to use with LPG. You have used a conversion kit to convert it to LPG use without confirming it was safe to do so. You were provided with an aluminium flue which did not have an outer skin as required by the installation instructions.

[5] There was a cavity wall where there had been a wood fire situated previously. That wall cavity was of insufficient size to safely take the insertion of the gas fire and there were no barriers to prevent the transfer of heat from the gas fire to the surrounding wall boards or woodwork. And at the conclusion of the work contrary to the requirements of the Gas Act and regulations, you failed to issue one of the required certificates.

[6] Soon after you completed the work, a fire occurred in the house and there was substantial damage to the dwelling house and to the complainants’ property in each case within the house, property they had acquired over the course of their lifetimes. Fortunately, they were quick witted enough to leave the premises when the fire was first noticed. The house that they had moved into together with a view to pooling their financial and other resources has been substantially damaged and whilst they are covered by insurance, the information I was given is that there is a shortfall in the cover provided by their insurance company of some $66,000. That remains a substantial issue in the discussions today.

[7] I was advised during the course of the sentence indication hearing that you had insurance cover for your business that you owned and operated in your own name to cover financial loss such as fines or indemnity for consequential loss.

[8] As it has transpired, and I give no blame to you in that regard, Mr Dykes, or

Mr Moodley, your lawyer, it has transpired that the insurance policy has an exception for compensation. A fine would be covered by the insurance policy but not emotional harm or consequential compensation for loss. Therefore, the basis on which I calculated where the appropriate end sentence should lie was on a mistaken premise.

[9] Having said that, I am not being asked to start that process again but to endeavour to deal with matters as they presently lie. The position advanced by

Ms Smith, for the prosecution, is to say that whilst there is authority in the higher Courts saying that awards of reparation must be limited so that they do not produce undue hardship on a defendant, nevertheless I should award as much as I think appropriate, absent that barrier, to compensate for emotional harm and consequential loss to the two victims.

[10] Mr Moodley, on your behalf, Mr Dykes, submits that that is a critical point. You offer, or have offered $100 per week for one year to pay $5000 of emotional harm reparation and Mr Moodley invites the complainants to pursue civil remedies against you for the balance of consequential losses, apparently not covered by their insurance policy. Obviously, that would put those complainants at a financial cost to pursue such civil proceedings and undoubtedly you in defending them, but as Mr Moodley has said, it would give the opportunity for the validity of the $66,000 claimed for consequential losses to be tested if need be.

[11] I stood the matter down for Mr Moodley to discuss with you and your wife, who is present in support of you, Mr Dykes, the possibility of a compromise which might at least be attractive to you as the defendant and to the complainants, that perhaps a lesser sum be agreed with facility made to make a lump sum payment as a compromise. It has transpired that you and your wife do not own a home or any substantial assets that would enable you to borrow money against those to make an immediate cash payment effectively to the complainants. Therefore, I am left with the

difficult task of determining what is the appropriate level of reparation that I should award.

[12] I am familiar with the response of the higher courts to this issue of reparation. A Judge in sentencing is required in all appropriate cases to address reparation and the availability of reparation reports under the Sentencing Act 2002 is a tool which can be used, but given the figures involved here and your present uncertain circumstances, there is little to be achieved in that regard.

[13] The figure of $66,000 of consequential loss has not been formally tested but Mr Moodley does not suggest that there is no doubt a substantial degree of liability that might exist in that regard. Whether it is $66,000 or a lesser sum might be debateable, but as I understand him, there is an acceptance that there have been additional losses by the complainants.

[14] It requires a balance therefore in my sentencing decision between causing undue hardship to you, which the law requires me to have regard to in ordering reparation, and what is undoubtedly undue hardship that the circumstances of this offending have visited on the two complainants. They are, of course, blameless in what they have done. They employed you in good faith and have now had a substantial setback in their lives financially and emotionally from the losses that have occurred through your failure to comply with your obligations as a gas fitter.

[15] In the judgment of Gilbert J in Ebdale v R, a successful appeal, in fact, against the decision of my own in the Waihi District Court from 27 July 2015, in the analysis of the relevant case law, His Honour held in reliance in particular on the review of authorities by Woodhouse J in Guinness v Police, at para [17] and [18], that the Courts have generally accepted that unless an order for reparation can be met within five years, undue hardship will be caused.1 This is premised on the basis that s 86 of the Sentencing Act 2002 allows a fine to be paid over a five-year period, but no more

_{without approval from the Court.}

1 Ebdale v R [2015] NZHC 3154; Guinness v Police [2015] NZHC 883.

[16] In this instance, the offer from you, Mr Dykes, was to pay $5000 over effectively the course of one year. You have made a further offer, through

Mr Moodley, after the matter was stood down, to pay $50 per week rather than $100 per week over a period of five years.

[17] You say that your present financial circumstances are uncertain. You continue to practice on your own account as a qualified gas fitter but you anticipate once this case is resolved and conviction and sentence imposed, that the oversight body administering the gas-fitting industry will consider your continued status as a qualified gas fitter. I am told there is a likelihood that you will no longer be able to practice on your own account, and that you will be reduced to either working as an employee of another such firm, or perhaps as a labourer, in which case your financial ability to pay

$100 a week would be challenged.

[18] It is uncertain at this stage exactly what the position will be. If the oversight body were to enable you to continue to work on your own account as a gasfitter, perhaps on conditions, or in conjunction with some other gasfitter, it may well be that your financial circumstances are significantly better and the figure of $100 a week could be maintained.

[19] It is a matter of striking a balance between undue hardship to you and, as I have said, the undoubted undue hardship that has occurred in these circumstances to the two complainants.

[20] Ironically, if civil proceedings were pursued and a judgment obtained against you, which Mr Moodley rightly, in my view, concedes is probable given the circumstances of the offending, the only issue would be the quantum of loss that might be proven at any such proceeding. The ability to enforce a judgment against you at a higher rate than $50 or $100 a week would be available. So under the Sentencing Act, there is a limitation on the recovery of reparation, whether it might cause undue hardship. That is not necessarily the same under the civil jurisdiction of the Courts.

[21] Needless to say, I deal with the issue on the basis of the present law, so in dealing with your sentencing in accordance with my sentence indication, I convict you

of the charge and impose four months’ community detention on the conditions set out in the pre-sentence report. That is:

(a) The approved curfew address is [address deleted], Tauranga.

(b) The curfew will be 7.00 pm to 7.00 am daily with the first curfew commencing next Monday, 13 May 2019.

[22] In terms of emotional harm:

(a) I consider that your offer of a payment of $5,000 by way of emotional harm reparation is entirely appropriate and I will order that sum payable in the rate of $2500 to each of the two victims.

(b) I also consider that an additional reparation figure of $15,000 is appropriate to cover consequential losses which I am satisfied are not covered by your policy of insurance nor by the policy of insurance by the complainants.

[23] That would give a total reparation figure of $20,000, more than in the Ebdale v R case where the learned Judge calculated the figure, as has occurred in other High Court cases, I concede, at $50 per week. But your circumstances at this stage at least are different, Mr Dykes. You have offered $100 per week and you have obviously considered that that is something which would be manageable by you for at least a year.

[24] When I take into account the figure of $20,000 in total that I have referred to, it works out effectively, in a rounded way, to $75 per week. I consider that over a five-year period, that should be manageable by you. You are still a young man, you have the opportunity to improve your circumstances and, in my view, to make those payments given that situation. So I am satisfied that whilst the reparation payments will be an imposition for you, they will not be an undue hardship in the circumstances of the case and in your personal circumstances.

[25] I comment again that undoubtedly an undue hardship for the victims of your omissions will continue but regrettably, the Sentencing Act does not allow me under the current law to do more than I have done at this stage.

[26] So to recap, four months’ community detention on the conditions that I have referred to set out in the pre-sentence report, an emotional harm reparation payment of $2500 to each of the victims, with consequential losses to the victims of $15,000, being a total of $20,000 reparation, to be paid at $75 per week, first payment seven

_{days from today’s date.}

Judge P S Rollo

District Court Judge

Date of authentication: 27/05/2019

In an electronic form, authenticated pursuant to Rule 2.2(2)(b) Criminal Procedure Rules 2012.