BuildLaw Issue 32 June 2018 | Page 33

NEW ZEALAND

Sentencing trends under new penalty regime

Mark Campbell and Owen Jacques

The Health and Safety at Work Act 2015 (HSWA) came into force in April 2016 and there have now been enough sentencing decisions pursuant to the new penalty regime (which increased the maximum penalty for offences not involving recklessness six-fold from $250,000 to $1.5 million) to see some trends emerging.

Although we are yet to see comment from the High Court on the sentencing methodology adopted by the District Court, the following trends are apparent:
• The courts have continued to apply the well-established general approach set out by the High Court in Department of Labour v Hanham and Philip Contractors Ltd (2009) 90 NZELC 93,095, (2008) 6 NZELR 79.
• It appears to be generally accepted that the starting point for a fine ought to be determined by reference to cumulative "bands" which reflect the offender's culpability (for example low culpability up $0 to $400,000, medium culpability $400,000 to $800,000 etc). There has been some disagreement as to how many bands there should be, with different judges favouring 4, 5 and 6 separate bands. However, it appears that the starting points adopted have been relatively consistent regardless of how many bands have been used.
• Significant discounts for guilty pleas and other mitigating factors are routinely applied (discounts in the order of 50-60% are relatively common). To date all of the decisions that we have seen have involved a guilty plea.
• Perhaps unsurprisingly, given the significant increase in penalties, inability to pay fines is becoming an important additional consideration leading to substantial reductions in fines for small businesses. In two cases that has led to the imposition of fines reduced by more than half again from the (already discounted) fine otherwise payable. The Courts have adopted the view that imposing a fine that would effectively force the closure of a business would only occur in "quite exceptional" cases involving repeat offending or "the most egregious of breaches".