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District Court of New Zealand |
Last Updated: 6 October 2021
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IN THE DISTRICT COURT AT CHRISTCHURCH
I TE KŌTI-Ā-ROHE KI ŌTAUTAHI
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CRI-2020-009-002928
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WORKSAFE NEW ZEALAND
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Prosecutor
v
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GLENN WARWICK SIBLEY
Defendant
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Hearing:
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11 November 2020
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Appearances:
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N Self for the Prosecutor C Nolan for the Defendant
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Judgment:
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12 November 2020
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NOTES OF JUDGE P R KELLAR ON SENTENCING
[1] The defendant, Mr Sibley, appears for sentence on a charge of contravening s 36(1)(a) and s 49(1)(b) of the Health and Safety at Work Act 2015 (the “Act”), the maximum penalty for which is a fine not exceeding $100,000. The charge is that Mr Sibley, as a person conducting a business or undertaking (“PCBU”), had a duty to ensure, so far as is reasonably practicable, the health and safety of workers that work for him while the workers are at work in the business or undertaking, namely while removing ceiling material, and that he did fail to comply with that duty.
[2] Mr Sibley was sentenced, with reasons to follow, on 11 November 2020 to a fine of $15,000, solicitors’ costs of $831.14 and court costs of $130. These are the reasons.
WORKSAFE NEW ZEALAND v GLENN WARWICK SIBLEY [2020] NZDC 23251 [12 November 2020]
Facts
[3] The property in question is in Queenstown. The property was built in the 1980s. In late 2018 the property was put on the market and an offer was made in early 2019. The purchaser requested an assessment be completed as a condition of the purchase. The assessment report concluded that the ceilings in the property contained asbestos. The purchaser subsequently withdrew their offer.
[4] The owner of the property contacted the company that completed the assessment to request a copy of the assessment. She was advised that a copy could not be provided as she had not commissioned the report. The company did, however, send a quote to the owner for removal of the asbestos. The quote covered 56 square metres of ceiling in the property, including three bedrooms, the hallway and kitchen.
[5] The owner contracted Mr Sibley to do renovation work on the ceilings, being plastering and painting. It was agreed that Mr Sibley would pull down the ceiling tiles and replace them. Mr Sibley was advised that there was a small trace of asbestos but that the home owner could pull it down. No further testing or analysis was done by either the owner or Mr Sibley.
[6] On or about 27 March 2019 Mr Sibley and two other workers arrived in Queenstown to complete the work on the property.
[7] WorkSafe received a notification on 28 March 2019 that materials known to contain asbestos were being taken down in the property. Subsequent testing confirmed that the ceiling material removed from the property contained chrysotile (white) asbestos.
Failure to ensure health and safety
[8] WorkSafe’s investigation revealed that Mr Sibley failed to comply with his duty under s 36 of the Act in that it would have been reasonably practicable for him to have:
- (a) Conducted an effective risk assessment for the work on the property;
Sentencing criteria
[9] Section 151(2) of the Act sets out specific sentencing criteria to be applied:
- (a) The Court must apply the Sentencing Act 2002 and must have regard to:
- (i) Sections 7-10 of the Sentencing Act;
- (ii) The purpose of the Health and Safety at Work Act;
- (iii) The risk of, and the potential for, illness, injury, or death that could have occurred;
- (iv) Whether death, serious injury, or serious illness occurred or could reasonably have been expected to have occurred;
- (v) Safety record of the person to the extent that it shows whether any aggravating factor is present;
- (vi) The degree of departure from prevailing standards in the person’s sector or industry as an aggravating factor; and
[10] The applicable sentencing purposes are as follows:
- (a) To hold Mr Sibley accountable for the harm done by the offending;
- (b) To promote in him a sense of responsibility for that harm;
- (c) To provide for the interests of any victims, including reparation;
- (d) To denounce the offending;
- (e) To deter the offending both in relation to Mr Sibley and generally.
[11] The applicable sentencing principles are as follows:
- (a) The gravity of the offending and the degree of Mr Sibley’s culpability;
- (b) The seriousness of the type of the offence as indicated by the maximum prescribed penalty;
- (c) The effects of the offending on any victim.
[12] Section 151(2)(b) of the Act obliges the Court to have regard to the purpose of the Act set out in s 3. The main purpose of the Act is to provide a balanced framework to secure the health and safety of workers and workplaces by (amongst other things) protecting workers against harm to their health, safety and welfare by eliminating or minimising risks arising from work or from prescribed high-risk plant.
Approach to sentencing
[13] A full bench of the High Court has issued a guideline judgment for sentencing under s 48 of the Act.1 The Court confirmed a four-step process:
1 Stumpmaster v WorkSafe New Zealand [2018] NZHC 2020.
(a) Assess the amount of reparation to be paid to any victim;
(b) Fix the amount of the fine, by reference first to the guideline bands and then having regard to aggravating and mitigating factors;
(c) Determine whether further orders under ss 152-158 of the Act are required; and
(d) Make an overall assessment of the proportionality and appropriateness of imposing these sanctions under the first three steps.
Step 1 – Assessing quantum of reparation
[14] In the present case, no person suffered loss of or damage to property, emotional harm or consequential loss as outlined in s 32 of the Sentencing Act. Therefore, no order for reparation is required.
Step 2 – Assessing the quantum of the fine
[15] The Court must follow a two-stage sentencing approach as set out by the Court of Appeal in Moses v R.2
[16] The High Court in Stumpmaster set out four guideline bands for culpability in offending under s 48(2)(c) of the Act for which the maximum penalty is a fine not exceeding 1.5 million dollars.
[17] There is no guideline decision setting out culpability bands for defendants who are charged under s 49 of the Act. I agree with the prosecutor’s submissions that an adjustment to the Stumpmaster bands considering the maximum penalty in this case is appropriate as follows:
- (a) Low culpability – starting point up to $17,000;
- (b) Medium culpability – starting point of $17,000 - $40,000;
2 Moses v R [2020] NZCA 296.
(c) High culpability – starting point of $40,000 - $67,000;
(d) Very high culpability – $67,000 and upwards.
The relevant culpability factors
The operative acts or omissions and the “practicable steps” it was reasonable for Mr Sibley to have taken
[18] Mr Sibley failed to take several reasonably practicable actions to ensure the health and safety of workers. He failed to:
- (a) Conduct an effective risk management for the work on the property;
- (b) Ensure that he had appropriate information in relation to asbestos at the property;
- (c) Engage a qualified asbestos removalist to remove the ceilings at the property and dispose of the material appropriately;
- (d) Ensure that WorkSafe was notified of the asbestos removal at least five working days prior to the work commencing; and
- (e) Ensure that workers had appropriate and adequate personal protective equipment. It seems that the workers did have adequate personal protective equipment.
The risk of and the potential for illness, injury or death that could have occurred
[19] Mr Sibley knew that asbestos was present in the property but did not know the quantity or location. Nevertheless, he and his workers disturbed the ceilings of the property and that ceiling material subsequently was found to contain asbestos. Once asbestos is disturbed tiny fibres are released. These fibres are hazardous and, if breathed in, can cause asbestos-related disease such as lung disease, mesothelioma and cancer.
Whether death, serious injury or illness occurred or could reasonably have been expected to have occurred
[20] If a person breathes in disturbed asbestos fibres it generally takes many years to develop into illness. For this reason, it is often difficult to pinpoint the exact point of ingestion.
The degree of departure from prevailing standards in the industry
[21] The risks associated with exposure to asbestos fibres are well known, and there is extensive industry guidance available on how to manage these risks. Mr Sibley failed to comply with industry guidance, including the Health and Safety at Work (Asbestos) Regulations 2016; approved Code of Practice, Management and Removal of Asbestos (November 2016); New Zealand Guidelines for the Management and Removal of Asbestos (Third Edition) and Health Risks from Asbestos Exposure (July 2014).
[22] Mr Sibley’s conduct departed considerably from well-known industry standards.
The obviousness of the hazard
[23] The risks arising from exposure to asbestos fibres are well known in the building industry and widely documented in guidance. Mr Sibley was aware that asbestos had been detected in the property. He had been a licensed asbestos removalist in the 1980s so would have greater awareness than a general painter/decorator.
The means necessary to avoid the hazard were available and cost-effective
[24] While there would be some cost involved in removing the asbestos from the building, the measures required of Mr Sibley were neither onerous nor cost prohibitive when compared to the serious risk of harm to workers.
The current state of knowledge of the risks, nature and severity of harm and the means available to avoid the hazard or mitigate the risk of its occurrence
[25] The risks associated with demolition involving asbestos are well known and considerable guidance is available to assist duty-holders in managing these risks.
Starting point for the fine
[26] The prosecutor referred to the following comparable cases:
- WorkSafe New Zealand v Peter John Page3;
- WorkSafe New Zealand v Hutt Construction 2013 Limited and Philip John Delaney4;
[27] The above cases are in relation to asbestos removal not being managed appropriately. They also all involved an obvious risk where the potential for serious illness was present because appropriate controls were not in place. In the present case, although Mr Sibley knew asbestos was present, there is no evidence he was deceptive. Furthermore, the site was not visited by many people at the time the work was undertaken. Mr Sibley was aware that asbestos was present but not where or the exact quantity.
[28] The prosecutor submits, and I agree, that the present offending ought to be assessed as towards the middle of the medium culpability band with a starting point of $25,000.
[29] There are no aggravating personal factors. Mr Sibley has previous convictions, none of which are relevant.
[30] The following discounts are available for personal mitigating factors:
- (a) Co-operation with the investigation – five percent;
3 WorkSafe New Zealand v Peter John Page, District Court Auckland, CRI-2014-004-004462, Judge MacDonald, 12 December 2014.
4 WorkSafe New Zealand v Hutt Construction 2013 Limited and Philip John Delaney [2016] NZDC 3652.
(b) Previous safety record – 10 percent – Mr Sibley has no previous health and safety convictions;
(c) Guilty plea – 25 percent.
[31] The total discount for mitigating factors, including guilty plea, is 40 percent or
$10,000. The fine is, therefore, $15,000.
Step 3 – Ancillary Orders – Costs to the regulator
[32] Under s 152(1) of the Act the Court may order an offender to pay to the regulator a sum it thinks just and reasonable towards the costs of the prosecution. The prosecutor seeks the sum of $831.14 being 50 percent of WorkSafe’s recorded legal costs. Mr Sibley takes no issue with that sum and it seems a reasonable contribution towards the costs of the prosecution.
Step 4 – Proportionality assessment
[33] The last step involves consideration of the total imposition on the defendant of any reparation, fine and other orders. The total must be proportionate to the circumstances of the offending and offender.
[34] Counsel for Mr Sibley indicated that Mr Sibley would need to make arrangements to pay the financial penalty but did not put forward any issues as to Mr Sibley’s financial capacity to pay a fine.
[35] Mr Sibley is fined $15,000, ordered to pay costs of the prosecution of $831.14 and court costs of $130.
Judge P R Kellar
District Court Judge
Date of authentication: 12/11/2020
In an electronic form, authenticated pursuant to Rule 2.2(2)(b) Criminal Procedure Rules 2012.
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