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District Court of New Zealand |
Last Updated: 15 February 2022
EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS]
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ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES),
OCCUPATION(S) OR IDENTIFYING PARTICULARS OF WITNESS/VICTIM/CONNECTED PERSON(S)
PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011. SEE
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IN THE DISTRICT COURT AT ROTORUA
I TE KŌTI-Ā-ROHE
KI TE ROTORUA-NUI-A-KAHUMATAMOMOE
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CRI-2019-063-003783
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WORKSAFE NEW ZEALAND
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Prosecutor
v
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MIKE HARRIS EARTHMOVING LIMITED
Defendant Company
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Hearing:
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24 July 2020
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Appearances:
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A Longdill for the Prosecutor
S Grice for the Defendant Company
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Judgment:
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24 July 2020
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NOTES OF JUDGE G C HOLLISTER-JONES ON SENTENCING
[1] Mike Harris Earthmoving Limited is for sentence today, having pleaded guilty to one charge of failing its duty as a person conducting a business or undertaking (“PCBU”) to ensure as far as is reasonably practicable, the health and safety of workers while the workers were at work in the business, per ss 36(1)(a), 48(1) and 48(2)(c) Health and Safety at Work Act 2015 (“HASWA”). The failure exposed individuals,
WORKSAFE NEW ZEALAND v MIKE HARRIS EARTHMOVING LIMITED [2020] NZDC 14722 [24 July 2020]
namely [the victim and two others],1 to a risk of death or serious injury from electrocution.
[2] The offence period is between 2 October 2018 and 15 November 2018. It relates to a serious injury incident that occurred on 14 November 2018.
Background
[3] The defendant company is a limited liability company that conducts a logging business. It is based in the rural town of Reporoa and employs 12 staff. At the time of the incident, it was operating two logging crews and additionally had a logging truck that was available for use. The sole director and shareholder of the company, Mr Michael Harris, worked in the business.
[4] On 1 August 2018, the defendant entered into a forest harvesting services agreement with a forest management company, Waipa Forest Management Limited (“WFML”) under which the defendant company was to harvest a woodlot site at 172 Hawthornden Drive, Rotorua.
[5] Preparation for the work involved the completion of a harvest prescription. Page 2 of the harvest prescription sets out the identified hazards on the site. The first hazard identified was power lines with the control being identified as to obtain a permit from Unison Networks Limited (“Unison”). Unison was the applicable lines company. On 25 September 2018, Unison issued the management company with a felling permit for the site. WFML was responsible for overseeing the felling project including arranging the relevant permits with Unison. WFML provided a copy of this felling permit to the defendant which was kept on-site. It noted that the line voltage was 11 kilovolts and additionally noted that should machinery or people come within four metres of the overhead power lines, a close approach consent would be required. WFML did not apply for a close approach consent.
[6] In order to undertake the felling work, the defendant company purchased a used Komatsu forwarder for use at the site. This was a forestry vehicle consisting of a cab, crane and bunk to transport logs. Effectively, it is a large four-wheel loader with a cab and a long-arm crane with a grab on the end. Since the purchase, the vehicle had mechanical issues which required Komatsu technicians being called to fix it on 15 occasions between the date of delivery and the date of the incident.
[7] A skid at the site was formed for the felling operation, on WFML’s instructions. A skid is a working area. WFML was responsible for metalling the access to the skid site. Before the metalling took place, the defendant used a portable diesel tanker. That portable tanker was parked in close proximity to the overhead power lines. The tanker was removed from the site and on 1 November, a stationary diesel tank was delivered to the site. The stationary tank was positioned by the defendant in the same position as the mobile tanker; this was because the skid had not been metalled at the time and the transporter could not access the skid area to place the tank there. The plan was that the fixed fuel tank would be removed to the skid area once the fuel level had dropped such that it could be shifted when the weight reduced. To mitigate the obvious risk to persons or vehicles from the power lines, on 8 October 2018 the defendant erected a physical barrier of logs and some danger tape to stop machines going within four metres of the power lines whilst working on the skid site. That was done at the request of WFML.
14 November incident
[8] On the day in question there was a crew working at the site, including a foreman and [the victim] who was tasked with the extraction of the logs using the forwarder. At the commencement of the day there was the usual tailgate meeting. The hazards identified at that meeting included the power lines; the control identified from managing the risks was to stay clear. Following the tailgate meeting, [the victim] filled the forwarder with diesel from the stationary diesel tank and left the skid site. He took it to the back of the forestry block but there were again issues with the forwarder. [The victim] was directed to arrange for the Komatsu mechanics to attend. In order for this to occur, [the victim] managed to get the boom into a position so the forwarder could
be moved and he took it back to the skid site. It was parked next to the stationary diesel tank, in close proximity to the overhead power lines.
[9] About 10.30 that morning, the mechanics from Komatsu arrived. The two named persons in the charging document were not inducted into the risks that were in play on 14 November and in particular, the risks from the power lines. The two mechanics from Komatsu and [the victim] commenced working on the loader, the engine of it was turned on and one of the mechanics sought to move the boom. Unfortunately, there was a mechanical misfunction which caused the boom to shoot upwards. It either connected or was in extremely close proximity to the overhead power lines such that electricity was able to arc from the power lines to the loader. At the time this occurred, [the victim] was standing on the tracks on the right-hand side of the loader holding onto a steel rail. The resulting electric current gave [the victim] a serious electric shock and he briefly fell unconscious. He was given immediate attention and was taken to hospital. He has suffered full thickness burns to his right foot which required the amputation of the big toe and second toe on his right foot. He also suffered full thickness burns to his right hand requiring multiple surgeries. He spent just under two months in hospital as a result of his injuries. He has required ongoing therapy including hand therapy. On 26 June 2020, he had further surgery to straighten his fingers and to reconstruct nerves. He still does not have full use of his right hand and appeared in Court today with a dressed right hand supported by a brace.
The defendant’s failures
[10] In terms of applicable standards and guidelines, it is common ground that the risks associated with forestry work around power lines and the controls required to manage those risks are well known and are the subject of extensive industry guidance including:
- (a) The Electrical Safety Regulations 2010 and the New Zealand Electrical Code of Practice for Electrical Safe Distances. The relevant provision from those regulations provides that there must be a distance of at least four metres between any part of a mobile plant and any overhead electric line.
[11] WorkSafe undertook an investigation and has identified a number of failures. These are set out at paragraph 36 of the summary of facts and the most significant features of it are:
- (a) The defendant’s hazard risk register did not identify working near overhead power lines as a risk relevant to the use of the forwarder.
- (b) The hazard risk register did cover the risk of working near overhead power lines and noted that if there was potential for the four-metre minimum approach distance to be breached, a safety observer would
2 I refer to ss 2.14 and 2.7.1 of that code of practice.
need to be present at all times and a permit obtained from the line owner. The defendant failed to implement these controls in relation to the forwarder. In particular, the power line in question was approximately 7.70 metres in height. When the forwarder was underneath the lines and the crane lowered to the ground, there was less than four metres between the forwarder and the lines.
(c) Additionally, the defendant had a safe operating procedure for working around power lines and that provided that no machines were allowed within six metres of any live power lines without permission from the forest manager. Unfortunately, that was not followed.
(d) There were to be health and safety inductions for service providers but that did not occur.
[12] The accepted failures of the defendant company were:
- (a) Failure to undertake an adequate assessment of the proximity of the power lines to areas where workers parked or were likely to park mobile plant. Additionally, there was an inadequate assessment of the potential for worker injury through mobile plant making contact with or electricity arcing from the power lines.
- (b) Inadequate management of risks associated with power lines including designating, communicating and monitoring the use of a safe area away from the power lines for maintaining and repairing mobile plant.
- (c) Failure to ensure the workers did not park mobile plant under the power lines.
[13] Since the incident, the defendant has:
- (a) Implemented areas for refuelling and maintenance of plant and equipment.
Victim impact
[14] [The victim] has provided a comprehensive victim impact statement. He is a [man in his forties] living in the Eastern Bay of Plenty. He has been working in the forestry industry for [more than 20] years and had been with the defendant company for just under one year. He details the extensive injury that has occurred including loss of feeling in the thumb, index and middle fingers of his right hand. He has experienced no feeling in his fingers and is very prone to other injuries as a result. He has limited movement in his right wrist and has received multiple surgeries including one emergency surgery to stem loss of blood from an artery. As I have already referred to, he has had further surgery on 26 June 2020; the outcome of that is not yet known, it is hoped that he will be able to gain more movement but that is not clear. The loss of his big toe and second toe has caused him issues with balance and he has had to obtain specialised footwear. He has had to undergo numerous therapy sessions including hand therapy.
[15] [The victim] acknowledges the help he has had from the defendant company and Mr Harris; in particular approximately $3,500 in mortgage payments, ACC top-up and a lump sum payment of $20,000 made on 26 March 2020.
[16] [The victim] has been unable to recreate using his [deleted] and there has been stress in the family. It is apparent from watching [the victim] today that the emotional impact has been considerable. I observe that [the victim] presents as a fit-looking [man in his forties] and I would infer that he was in generally robust health prior to this; it is clear that the injuries have had considerable impact on him.
No history with Worksafe and Restorative Justice
[17] The defendant has no adverse history with WorkSafe.
[18] There was a referral to restorative justice; the defendant company wanted to meet with the victim but unfortunately this has not been possible through no fault of anybody and results from the COVID-19 lockdown and then [the victim]’s further surgeries.
Approach to sentencing
[19] Section 151(2) HASWA sets out the approach to sentencing and provides that the Court must have particular regard to:
- (a) Sections 7 to 10 Sentencing Act 2002.
- (b) The purpose of HASWA.
- (c) The risk of, and the potential for, illness, injury or death.
- (d) Whether death, serious injury or serious illness occurred or could reasonably have been expected to have occurred.
- (e) The safety record of the defendant.
- (f) The degree of departure from prevailing standards in the relevant sector.
- (g) The person’s financial capacity or ability to pay any fine.
Sentencing purposes and principles
[20] The applicable purposes of sentencing in this case are:
- (a) To hold the defendant accountable for the harm done by the offending.
- (b) To promote in the defendant a sense of responsibility for that harm.
- (c) Deterrence, both in relation to the defendant and general deterrence.
[21] The relevant principles of sentencing are:
- (a) The gravity of the offending and the degree of culpability.
- (b) The seriousness of the offence in terms of the maximum penalty. The maximum penalty in this case is a fine not exceeding one and a half million dollars.
- (c) I am also required to consider the least restrictive outcome.
[22] As I have already stated, I am also to have regard to the purposes of HASWA and the relevant purposes here are ss 3(1)(a), 3(1)(e) and 3(2), in particular:
- (a) The need to protect workers and other persons against harm to their health, safety, and welfare by eliminating or minimising risks arising from work.3
- (b) Securing compliance with the Act through effective and appropriate compliance.4
[23] I am to have regard to the guideline judgment of the full bench of the High Court in WorkSafe New Zealand v Stumpmaster Ltd.5 The Court in that case mandated a four-step sentencing process:
- (a) To assess the amount of reparation to be paid to the victim.
- (b) Fix the amount of the fine by reference to the guideline bands then having regard to the aggravating and mitigating factors.
- (c) Determine whether there are ancillary orders required.
3 Sentencing Act 2002, s 3(1)(a).
4 Section 3(1)(e).
5 WorkSafe New Zealand v Stumpmaster Ltd [2018] NZHC 2020.
(d) To make an overall assessment of the proportionality and appropriateness of imposing the sanctions under the first three steps.
Reparation
[24] Reparation may be paid for the emotional harm to the victim.6 Fixing an award for the payment of emotional harm is an intuitive exercise. The Court is to strike a figure that is just in all the circumstances and which compensates for the actual harm arising from the offence in the form of anguish, distress and mental suffering.
[25] I have already referred to the injuries suffered by [the victim]. My assessment of the emotional harm to [the victim] was this. He was unconscious then became aware that he was injured. He was in a remote location. He was hospitalised for approximately two months at Waikato Hospital which is about a four hour drive from his home. He was away from family over that time, although his wife managed to stay with him for some of it. [The victim] has had to undergo multiple surgeries and as at the present date which is 20 or so months after the incident, the outcome regarding full use of his right hand is unknown. The ongoing anxiety that this has caused is clear. Further, [the victim] has experienced balance issues resulting from the toe amputations. This is a significant impact for a fit [ man in his forties] who is accustomed to working physically. I have already referred to the loss of dexterity in his right hand, he is naturally right-handed. This will be considerably frustrating. [The victim] has lost the ability to undertake his usual form of recreation which is [deleted]. Lastly, [the victim]’s struggles have also posed a considerable stress on his family; this is to be expected as [the victim] wrestles with trauma, anxiety and the continuing uncertainty from the incident.
Submissions regarding reparation
[26] The prosecution accept that every case will differ. The prosecution submit that the emotional harm to [the victim] is more significant than the victim in WorkSafe New Zealand v Miller Foods Ltd.7 The victim in that case had extensive
6 Sentencing Act, s 32(1)(a).
7 WorkSafe New Zealand v Miller Foods Ltd [2018] NZDC 5948.
burning and crushing injuries and had to have the tips of three fingers amputated. There were ongoing psychological effects. The prosecution submit that the emotional harm here was less serious than the cases of WorkSafe New Zealand v BR & SL Porter Ltd8 and WorkSafe New Zealand v Electrix Limited.9
[27] It is submitted that the appropriate award for emotional reparation is $50,000. In that regard, the prosecution submit that the features of [the victim]’s emotional suffering are that he is still off work, the amputations and the ongoing emotional impact. Ms Longdill submits that the ACC top-up paid by the defendant in the sum of
$6150 ought not to be deducted from the emotional harm award because those payments were in the form of consequential loss and were not for emotional harm.
[28] The position taken by the defendant does not seek to lessen the emotional harm suffered by [the victim] but submits it is a comparative exercise. In particular, the defence submits that the emotional harm was less than the victim in WorkSafe New Zealand v Miller Foods Ltd t/a Remarkable Tortillas10 and is less serious than the victim in WorkSafe New Zealand v Fall Stop Scaffold Ltd11 in which an award of $40,000 was ordered. Ms Grice submits that the emotional harm in this case is more comparable to WorkSafe New Zealand v Northpower Ltd12 in which the victim, following an arc flash, sustained deep burns to his right thigh and superficial burns to his face, buttocks and upper legs. He required skin grafts and endured significant pain during recovery. He had difficulty finishing his industry training and there was also deep emotional harm as a consequence. In that case, there was a
$30,000 award for emotional harm. The defendant submits the appropriate award of emotional harm in this case is $35,000.
Assessment of the appropriate award of emotional harm
9 WorkSafe New Zealand v Electrix Ltd [2017] NZDC 20855.
10 WorkSafe New Zealand v Miller Food Ltd t/a Remarkable Torillas [2018] NZDC 4732.
11 WorkSafe New Zealand v Fall Stop Scaffold Ltd [2020] NZDC 3629.
12 WorkSafe New Zealand v Northpower Ltd [2017] NZDC 17527.
[29] I consider the emotional harm [the victim] suffered is more serious than the victim in Northpower Ltd, more serious than the victim in Fall Stop Scaffold Ltd and comparable to the victim in Miller Foods Ltd t/a Remarkable Tortillas.
[30] I fix emotional harm reparation at $45,000.
[31] As I have already noted, the defendant company has paid the sum of $20,000 as a lump sum and payments of $3,558.70 towards [the victim]’s mortgage. These are to be deducted from the $45,000. I agree with Ms Longdill that the ACC top-up is not reparation for emotional harm and is not to be deducted.
[32] Reparation is calculated as follows:
- (a) The sum already paid by the defendant company of $23,558 is to be deducted from the $45,000 award.
- (b) Accordingly, the defendant company is ordered to pay $21,442 to [the victim] in reparation.
Setting the fine
[33] I adopt the well-established approach followed by the Courts following R v Taueki13 and will first set a start point based on the defendant’s culpability for the offending, then adjust that start point for aggravating and mitigating circumstances relating to the offender then lastly, I will consider the issue of ability to pay.
Culpability Assessment
[34] In undertaking the culpability assessment, I am to consider the four bands outlined in Stumpmaster. They are:
13 R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372.
(a) Low culpability with a starting point up to $250,000.
(b) Medium culpability with a starting point between $250,000 and
$600,000.
(c) High culpability with a starting point between $600,000 to $1 million.
(d) Very High culpability with a starting point of $1 million plus.
[35] I am also to take into consideration the list of factors outlined in the earlier guideline judgment of Department of Labour v Hanham & Philp Contractors Ltd.14 The following are to be considered:
- (a) The identification of the operative acts or omissions and the practicable steps that was reasonable for the offender to have taken
The defendant has accepted failing to take the following reasonably practicable actions, namely failure to:
(i) conduct an adequate assessment of the risks posed by power lines at the site;
(ii) adequately manage the risk of power lines including designating, communicating and monitoring the use of a safe area away from power lines for refuelling and inspecting, maintaining and repairing mobile plant; and
(iii) ensure that workers did not park mobile plant underneath the power lines.
The defendant raises the following mitigating factors:
14 Department of Labour v Hanham & Philp Contractors Ltd [2008] NZHC 2076; (2009) 9 NZELC 93,095.
(i) WFML did not apply for a close approach permit. I have considered this but rejected it because the actual harvest operation did not take place adjacent to the power lines, rather the risk arose at the skid site which appears from the photographs to be of large enough size for vehicle maintenance. Further, at WFML’s request, tape and logs were used to stop machines going near the power lines so to put in place a protective measure. In my assessment, the circumstances did not arise for WFML to have to apply for a close approach permit.
(ii) The second mitigating circumstance advanced is the delays in creating a metalled skid site and related to that the placement of the stationary diesel tank. As I have already noted, when the stationary fuel tank was delivered to the site, apparently the only place it would go was in close proximity to the power lines. If that is so, and I have my doubts, but taking that submission at its face value, it created an obvious risk which the defendant company had to manage. The height of the forwarder when parked beneath the lines even with the crane fully lowered, infringed the four-metre safe distance rule. This safe distance rule would have been infringed on the morning of the incident when the loader was refuelled. I presume it had been refuelled on multiple occasions prior to 14 November. The defendant’s own safe operating procedure for working around power lines required a six-metre distance and from that, so I infer that requirement had not been followed on multiple occasions. Additionally, the forwarder had experienced multiple breakdowns and it was entirely foreseeable that it would be required to return to the skid site.
(iii) Lastly, the defendant highlights the failure of the Komatsu technicians to carry out pre-safety checks or site assessment. That may be so, but they were not briefed on the relevant hazards and in particular the risk of the overhead power lines.
The most serious failure here was the failure to designate, communicate and monitor a safe area away from the power lines such that refuelling, inspecting and maintaining mobile plant could occur and additionally, the failure to ensure that workers did not park mobile plant in the vicinity of the fuel tank and power lines.
(b) Nature and seriousness of the risk of harm
The prosecution submits there was a very real risk of death or serious injury through electrocution. The defendant company accepts that the risk was serious. I agree there was a risk of serious harm or death, that is because of the potential lethality from power lines that carried 11 kilovolts.
(c) Departure from industry standards
The prosecution submit there has been a significant failure. The defence accept that there has been a degree of departure, but it is not significant.
The key failures apply in relation to the relevant forestry codes and guidelines, in particular:
(i) The MBIE Code of Practice and I refer to s 2.71 and its interrelationship with the Electrical Safety Regulations 2010 and the New Zealand Electrical Code of Practice for Electrical Safe Distances which mandate the safe distance of at least four metres.
Further, in the MBIE Code of Practice is the requirement for briefing visitors and the provision of safe areas for visitors.
(ii) The next relevant forestry guideline that was not followed was the SafeTree Electrical Safety Guidelines for Forestry Operations 2018 which required the provision of safe zones for machinery maintenance.
(d) Obviousness of hazard
It is accepted, and I agree that the hazard was obvious.
(e) Means necessary to avoid hazard
Were they available and effective? It is accepted there was an effective means to avoid the hazard, that is the designation of a safe area for attending to mobile plant and the provision of a relevant safety briefing for visiting contractors.
(f) The current state of knowledge of risks, nature and severity of harm and the means available
I have already referred to the industry guidance regarding the risks. Additionally, there was the defendant’s own hazard risk register and safe operating procedures for working around power lines and for the storage, transport and handling of fuels. Additionally, there was the defendant’s written safe operating procedure which provided that there was to be no machines allowed within six metres of any active power lines.
[36] Accordingly, there is no doubt that the risks were known and there was the means available to avoid them.
Setting the start point
[37] The prosecution submit that the defendant’s culpability is in the medium culpability range set out in Stumpmaster and the Court should adopt a start point of
$425,000. Ms Longdill submits that this figure is in the middle of the medium culpability band. In relation to Fall Stop Scaffold Ltd, Ms Longdill submits that it is midway between the start point taken for the scaffolding company at $550,000 and that taken by the roofing company at $300,000.
[38] Ms Grice submits that whilst the defendant’s culpability is in the medium range, it is at the lower end of that range and she submits that the Court should take a start point of $300,000, which is the same as that taken by the Court for QJB Roofing Ltd in Fall Stop Scaffold Ltd.
Assessment
[39] A thorough consideration of each of the culpability factors has made it clear that the defendant’s culpability is well into the medium range. The risk of serious harm or death from the overhead lines was an obvious hazard and well-known within the forestry industry. In this case, the standards that have been developed by the forestry industry were not followed and the measures to avoid the harm were straightforward and available. The consequence to the victim has been serious and ongoing. The defendant’s culpability is greater than that of QJB Roofing Ltd. QJB Roofing Ltd was not the employer of the victim in that case and it had not been on-site for a week.
[40] I set the start point at $400,000.
Aggravating and Mitigating features
[41] There are no applicable aggravating features.
[42] Counsel are largely agreed on the applicable discounts, there are small areas of difference which I shall come to.
Discount for reparation
[43] I have made an award of reparation of $45,000.
[44] The prosecution submit this should sound in a 10 per cent discount from the starting point taken. The Court in Stumpmaster cautioned against a one-to-one credit. Ms Grice submits the discount for payment of reparation should be 15 per cent.
[45] Taking into account the Court’s comments in Stumpmaster, I set the discount for reparation at 10 per cent. I consider that fairly represents the steps the defendant has taken, in particular the payment in March 2020 of $20,000.
Co-operation with the investigation
[46] Co-operation with the investigation. It is agreed that this should be set at five per cent and I do so.
Prior good record
[47] I have already referred to the defendant’s previous good record with WorkSafe. A five per cent discount is appropriate for that.
Remorse and willingness to make amends
[48] The defendant is clearly remorseful. I have read Mr Harris’ affidavit which sets out the extensive efforts that the defendant has gone to, the effect on all the staff of the company and the ongoing upset that this has caused. I accept this is genuine and it has been reflected in the company’s actions. The defendant company was willing to attend restorative justice but that did not go ahead. I set the discount at 10 per cent for remorse and willingness to make amends.
Remedial steps
[49] The defendant has undertaken remedial steps and Ms Grice submits that they should sound in a further discount. Taking into account the remedial steps undertaken, my assessment is that they were appropriate corrective actions but are not at a level that would justify an additional discount.
Discount for guilty plea
[50] Finally, discount for guilty plea. That is accepted to be 25 per cent.
Total discounts
[51] The total discounts available to the defendant company are 55 per cent or
$220,000 and result in an end fine of $180,000.
Ancillary orders
[52] The costs of prosecution are $7,263. The defendant accepts that the Court should award this as an ancillary order and I do so.
Overall assessment of proportionality and appropriateness of penalty
[53] This is one of the more difficult areas of this sentencing exercise. The defendant submits that it does not have the financial capacity to pay a fine of more than [amount deleted]. The general principle is that there should be clear evidence that a fine above a particular level cannot be paid before there is a reduction in the level. The Court is to undertake a robust analysis of the evidence so that it can be satisfied that the defendant is not avoiding liability.
[54] The defendant has filed affidavits from the managing director, Mr Harris, two affidavits from a Mr Erskine-Shaw, the company’s accountant, one of those exhibits the company’s financial statements for the year ending 31 March 2020 and the other is a reply to an affidavit filed by the prosecution.
[55] The prosecution have filed an affidavit from a forensic accountant, Mr J Shaw, who has reviewed the defendant’s 31 March 2020 financial statements and the evidence of Mr Erskine-Shaw.
[56] From that evidence, the following conclusions can be reached:
- (a) The defendant company is a small family run company. The sole director and shareholder is Mr Harris. [His wife] works part-time in the business as an administrator. It is the main source of income for the Harris family.
[57] [Redacted].
[58] [Redacted].
[59] [Redacted]. I am aware of the financial challenges that apply to rural towns such as Reporoa and the devastating impact that the company’s failure would have on its 12 workers.
[60] I have concluded that the fine should be reduced to $100,000 and that the payment of that should be deferred to next year.
[61] I order that the fine of $100,000 is to be paid in monthly instalments over a period of three years commencing on 1 March 2021.
Conclusion
[62] The defendant is ordered to pay the sum of $21,442 in reparation to [the victim].
[63] The defendant is fined $100,000 and is to pay it in instalments as I have indicated.
[64] The defendant is to pay the costs of prosecution in the sum of $7,263.
[65] The part of my sentencing that deals with the financial information of the defendant company is suppressed. What is to be reported is that I reached an end fine
of $180,000 and that I reduced it to $100,000 on the basis that I concluded that the defendant company had the inability to pay a fine of $180,000. There is to be no reference to [redacted] and other details that I have discussed concerning the defendant’s situation but the overall impact of downturn in trading from COVID-19, the consequences of company failure in Reporoa and effect on 12 people can be published.
[66] I have suppressed the name and identifying details of the victim.
Judge GC Hollister-Jones
District Court Judge
Date of authentication: 4/11/2020
In an electronic form, authenticated pursuant to Rule 2.2(2)(b) Criminal Procedure Rules 2012.
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