NINO’S LIMITED v MARITIME NEW ZEALAND [2020] NZHC 1467

NINO'S LIMITED v MARITIME NEW ZEALAND [2020] NZHC 1467 [26 June 2020]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECRI-2020-485-28[2020] NZHC 1467BETWEEN NINO'S LIMITEDANTONIO INNOCENZO BASILESHANE MICHAEL McCAULEYAppellantsAND MARITIME NEW ZEALANDRespondentHearing: 23 June 2020Counsel: R Rasch for AppellantD R La Hood and L R van der Lem for RespondentJudgment: 26 June 2020JUDGMENT OF THOMAS J[1] On 7 June 2017, the Victory II commercial fishing vessel sank on its returnjourney to Wellington from off the coast of the South Island. The crew, who wereforced to abandon the Victory II some five kilometres offshore, were rescued by a localfisherman. The Victory II sank because it was carrying a catch of at least 28 tonnes,whereas its stability requirements allowed a maximum of five tonnes. The Victory IIhad consistently exceeded the five-tonne limit for the year prior to the sinking.[2] The owner of the Victory II, Nino's Limited, its sole director, Antonio Basile,and the skipper, Shane McCauley, all pleaded guilty to representative charges unders 48 of the Health and Safety at Work Act 2015 (the Act) of failing to ensure the safetyof the crew. Against maximum penalties of a fine of $1.5 million, $300,000 and$150,000 respectively, Judge Davidson in the Wellington District Court imposed finesof $380,000, $47,000 and $17,500 respectively.1 Nino's was ordered to pay emotionalharm reparation to three crew members. Cory Allen and Jonathan Speak were each toreceive $25,000 and Jason Maxwell, $10,000. Nino's also pleaded guilty to twocharges under the Maritime Transport Act 1994 (MTA) of failing to pay two crewmembers normal wages following the loss of the Victory II until each wasre-employed. Against a maximum penalty in respect of each charge of a fine of$30,000, Nino's was ordered to pay $1,800 in respect of Mr Allen and $3,000 inrespect of Mr Speak. A further fine of $2,500 was imposed for a failure of Nino's tomeet its employer obligations under the MTA.[3] Nino's, Mr Basile and Mr McCauley each appeal the sentences on the basisthey were manifestly excessive. Specifically, they say that the starting point taken bythe Judge assessed their culpability too highly and that, in assessing reparation, hegave insufficient credit for mitigating factors.[4] There is no appeal against the MTA fines.FactsStability requirement[5] The Victory II was built in 1971. Nino's purchased it in 2014. Nino's ownedand operated the Victory II under a Maritime Transport Certificate issued on 9 April2015. At the time of the incident, the Victory II had a current Certificate of Survey.[6] Between 1995 and 2009, the Victory II operated in Australia. On 5 August1996, the Marine Board of Victoria approved a vessel stability book for the Victory II.The stability book stated that, in order to comply with stability requirements, theVictory II should set out with restricted amounts of fuel, water and ice. The stabilitybook identified a maximum catch of five tonnes of fish in order for the vessel tocomply with its stability requirements.[7] Neither Mr Basile nor Mr McCauley were aware of the limitation on loadcapacity, although Mr Basile was aware of the existence of the stability book.1 Maritime New Zealand v Nino's Limited [2020] NZDC 2536 [the District Court Decision].[8] Nino's did not provide Mr McCauley with any vessel-specific training otherthan Mr McCauley taking a fishing trip on the Victory II with the previous skipper.The other crew members did not receive an induction.The incident[9] Late in the morning of 10 June 2017, the Victory II was fishing off the Kaikouracoast after a two-day fishing trip. On board were Mr McCauley and the three crewmembers. Sea conditions were good.[10] Although the Victory II was already substantially loaded with fish well inexcess of the five-tonne load stability limit specified in its stability book, a final catch,estimated to be approximately ten tonnes, was hauled aboard. The Victory II hadalready begun listing portside with obvious signs of water on board. It could not copewith the additional weight. The stern slumped further portside, water was taken onrapidly and the Victory II began to sink. Evacuation procedures into an inflatable liferaft began but at least one of the crew was dragged underwater as the life raft remainedconnected to the sinking vessel.[11] The crew were rescued about three-quarters of an hour later. None werephysically injured.[12] Although the crew were assisted back to Wellington, little was done for themafterwards. Neither Mr Allen nor Mr Speak were paid wages following the loss of theVictory II as required under s 23 of the MTA pending finding new employment.[13] Two of the crew gave victim impact statements. Mr Allen said:I had a surge of fear that we weren't going to make it back to shore alive. We were now floating in the ocean, in the life raft. then the panic started.We could not find the safety knife to cut the painter rope which was stillattached to the, now very fast, sinking boat. We were too late and the vesselpulled our life raft two to three metres under the water. Johnny and I werestuck in the life raft while McCauley and Maxwell had fallen out. As the liferaft capsized it felt like it was going to be the place we would die.The feeling is indescribable. Mind numbing. Suffocation and the fear of beingso close to death. It has given me demons I fight every day. Luckily the staticrelease blew and the life raft fired up out of the water. We retrieved McCauleyand Maxwell again. There was no leadership or safety provided from himas the skipper. I reached out to Nino seeking some sort of financialcompensation towards counselling, in which he replied to me, "if anyoneneeds counselling it's me", referring to himself. Nino refused to give any formof compensation toward the costs of living and the loss of wages.[14] Mr Speak said:I was in the hold when the ship started to sink and if Cory hadn't come to getme I'd be dead, I know it. At the time I didn't think we were going to make itand that has stayed with me. I remember being incredibly cold in the life raftand not knowing if anyone was going to rescue us. Since the sinking Iexperienced what the psychologists call disassociative episodes, myconcentration is poor and I feel anxious. I am generally stressed. I've hadsuicidal thoughts but never any suicidal intent.[15] Both have been diagnosed with post-traumatic stress disorder.[16] The third crew member, Jason Maxwell, did not provide a victim impactstatement.[17] As the Judge noted, Shane McCauley was both a victim of Nino's andMr Basile's failure to ensure his safety but was also charged as the skipper for failingto ensure the safety of the crew.The charges[18] The charges under the Act against Nino's and Mr Basile were that each failedto take reasonably practicable steps to identify the overloading risk, ensure thatappropriate systems were in place to prevent overloading, operate the Victory II in amanner that did not exceed its loading capacity and ensure the provision of adequatetraining and instruction for the crew.[19] The charge against Mr McCauley was similar, being that he failed to take thereasonably practicable steps of identifying the overloading risk, familiarising himselfwith the catch load capacity of the Victory II, ensuring that systems were in place toprevent overloading and ensuring that the Victory II did not operate in a manner thatexceeded the load capacity.The District Court decision[20] After outlining the facts and the victim impact statements, the Judge addressedthe defendants' personal circumstances and prior health and safety record. Nino's is"a fairly substantial fishing company", incorporated in March 2007. It operates ninefishing vessels and has a fish processing plant which employs around 50 staff. Nino'shas no relevant insurance.[21] Mr Basile is the sole director and shareholder. He earns a good salary.[22] Mr McCauley gained his skipper's ticket in 1993 and his coastal master'sfishing ticket in 2003. He earns a reasonable salary.[23] There was no evidence before the Judge of any financial incapability on thepart of Nino's, Mr Basile or Mr McCauley.[24] The Judge noted the defendants' assertion that the Victory II was well-capableof carrying a load beyond its limit and that the limit had been set some years earlierwhen it was operating in Australia. He said that each defendant accepted by theirguilty pleas that they knew the limit. He also noted there was no evidence they hadattempted to have the Victory II resurveyed with a view to resetting its load capacity.[25] The Judge observed that, prior to sentencing, Nino's sought agreement fromthe prosecution to the imposition of an enforceable undertaking of an offer of $10,000reparation to both Mr Allen and Mr Speak. That proposition was rejected by theprosecution. No payments were made to the victims prior to sentencing.[26] The Judge pointed out that the charges under the Act were representative,reflecting the regular overloading of the Victory II for over a year. Each time theVictory II was overloaded, there was the risk of sinking. The Judge referred to theobvious consequences of a sinking occurring at open sea.[27] The Judge described the offending as "a gross departure from plain, simplemaritime safety and fishing industry standards".2 He said the risks were obvious andhigh, and there were a number of reasonably practicable steps available to eachdefendant to meet that risk but those steps were not taken. To his mind, this carriedwith it the flavour of "maximising catch return for profit".3[28] The defendants were entitled to a discount for their prior good health and safetyrecord and lack of previous convictions, tempered by the ongoing nature of theoffending. The Judge was mindful of the need for a discount for cooperation with theinvestigating authorities, some "fairly tentative" offers of compensation and the factthat the maritime rescue plan worked. They were also entitled to a full credit for theirpleas of guilty.[29] While recognising reparation as a mitigating feature, the Judge dealt with it aspart of the overall construction of sentencing.Reparation[30] The Judge rejected Ms Rasch's submissions on behalf of the defendants to theeffect that, as the crew had not suffered actual physical injury, emotional harmreparation was problematic. He considered the case of WorkSafe New Zealand vDepartment of Corrections4 as referred to by the prosecution, who sought a reparationorder against Nino's only. The Judge reasoned that reparation should not be as highas $45,000 (which had been imposed in WorkSafe New Zealand v Department ofCorrections when a death was witnessed) but considered each victim suffered "whatcan only be described as a near death experience" (emphasis added). He imposed$25,000 in respect of the emotional harm suffered by Mr Allen and Mr Speak. Heimposed $10,000 in respect of Mr Maxwell, given the lack of any specific victimimpact information.2 The District Court Decision, above n 1, at [31].3 At [32].4 WorkSafe New Zealand v Department of Corrections [2017] NZDC 819.Level of fine[31] The Judge referred to the guideline bands from the Stumpmaster v WorkSafeNew Zealand decision.5 He agreed with the prosecution's submission that it waslogical to adjust downwards the range of penalties for Mr Basile as an officer of Nino's(with Nino's being the person conducting a business or undertaking (PCBU)) andMr McCauley as a worker. The adjustment was to reflect the available lowermaximum fine in each case. This was on the basis of this being an orthodox sentencingapproach often used in criminal sentencing in adjusting tariff or sentencing bandsdownwards to reflect lower maximum penalties in similar types of charges.[32] Ms Rasch had submitted that the level of culpability for each defendant shouldbe placed at the lower end of the range, advocating a starting point for Nino's of a fineof $125,000. There was some suggestion Mr Basile and Mr McCauley should bedischarged without conviction, although there was no formal application in that regard.Ms Rasch had submitted there was good evidence that, because the load capacity hadbeen exceeded on earlier occasions without difficulty, the capacity was indeedinadequate.[33] The Judge referred to the cases relied on by the prosecution.6 He categorisedthe offending as approaching or at the top of the medium culpability band,emphasising the regular overloading of the Victory II and the associated risk. Heviewed the failures as a substantial departure from fishing industry standards. Henoted the reasonably practicable steps which could have been taken. He then said thatwhat occurred on 10 June 2017 was even worse. There was already 18-28 tonnes offish in the hold (well in excess of the limit) but a further 10 tonnes was hauled andattempted to be loaded.[34] Given the maximum available penalty for Nino's of $1.5 million, the Judgenoted that an upper level medium culpability fine of around $600,000 was only40 per cent of the available maximum. He set the starting point for fines at $600,0005 Stumpmaster v WorkSafe New Zealand [2018] NZHC 2020, [2018] 3 NZLR 881.6 Stumpmaster v WorkSafe New Zealand, above n 5; Department of Labour v Hannan and PhilpContractors Ltd [2008] 6 NZELR 79 (HC); WorkSafe New Zealand v Agility Building SolutionsLtd [2018] NZDC 24165; and WorkSafe New Zealand v The Sunday Hive Ltd [2018] NZDC 20796.for Nino's, $120,000 for Mr Basile and $40,000 for Mr McCauley. Taking Nino'sfine, the Judge deducted $60,000 (10 per cent) for the prior good record, $30,000 (fiveper cent) for the offer of amends through an enforceable undertaking and 25 per centfor the guilty plea, resulting in a rounded fine of $380,000.[35] The Judge concluded that the total penalty against Nino's (fine of $380,000and emotional harm reparation of $60,000, totalling $440,000) was not excessive oroppressive.7[36] The Judge noted that Nino's and Mr Basile, while distinct legal entities, wereclearly interwoven. He pointed out, however, Mr Basile's individual personalculpability, which he fixed at the top of the medium range. To avoid any doublepunishment, he made a significant discount, reducing the starting point from $120,000to $75,000, which, with similar discounts to those of Nino's, resulted in a fineof $47,000.[37] The Judge then assessed the total overall financial penalty for Nino's andMr Basile combined of $487,000 and was satisfied it was appropriate.[38] The Judge considered Mr McCauley as skipper carried personal responsibility,although he was to some extent reliant on the health and safety processes of hisemployer. From the starting point of $40,000, the Judge discounted an emotional harmreparation payment which he would have fixed at $12,500, to arrive at a final fineof $17,500.[39] Finally, there was no dispute as to the reparation for unpaid wages due toMr Allen ($1,800) and Mr Speak ($3,000). Although the prosecution had submitted afine of $7,000 would not be excessive, the Judge imposed a fine on each chargeof $2,500.7 The District Court Decision, above n 1, at [70].The appeal[40] The Judge followed the sentencing approach and methodology as suggested inthe guideline judgment, Stumpmaster v WorkSafe NZ.8 That is, assessing reparation,assessing the appropriate level of fine by reference to the degree of culpability, anadjustment to recognise aggravating or mitigating features, determining whetherfurther orders under ss 152–158 of the Act are required, followed by an overallassessment of penalty, adjusting it if necessary for the financial circumstances of theindividual defendant. There is no criticism of his approach.Reparation[41] While recognising that the quantification of emotional harm is a difficult task,in Ms Rasch's submission, the Judge erred in his approach. She contended that it wasillogical to arrive at different reparation figures, the assessment should have been madeby reference to the Accident Compensation legislation, and she described it as"provocative" of the Judge to label the experiences of the victims, Messrs Speak andAllen, as a "near death experience".[42] Ms Rasch acknowledged that Messrs Speak and Allen suffer from post-traumatic stress disorder but, in her submission, positive growth could come out ofthat – resilience and "coping ugly". She noted that Nino's had sought to address thisin its offer of an enforceable undertaking by providing for cognitive behaviourcounselling to be made available to the crew.[43] Ms Rasch criticised the Judge's characterisation of the victims' experience asa "near death one", saying that expression applies when a person "appears to beclinically "dead" for a short period – when their heart stops beating, their brainregisters no sign of activity and other vital signs indicate death". These submissionscan be described as novel.[44] The Judge, in contrast, followed an entirely orthodox approach, starting withhis quote from the Sentencing Act provisions as to a sentence of reparation.8 Stumpmaster v WorkSafe New Zealand, above n 5, at [35].Reparation may be imposed where an offender "caused a person to suffer emotionalharm".9 There is no indication that Parliament intended judges to undertake some sortof critical analysis of the harm claimed to have been suffered by a victim.10 This isfurther emphasised by the purposes of sentencing, which require the Court to providefor the interests of the victim and reparation for harm done, and the principles ofsentencing which require the Court to take into account any information concerningthe effect of the offending on the victim.11[45] Ms Rasch provides no authority for her definition of a "near death experience".The crew were in a sinking vessel, five kilometres offshore, not wearing life jacketsand pulled underwater while in a life raft. They described the fear and panic that theywould not make it to shore alive, feelings of suffocation and the fear of being so closeto death. Both victims still suffer from that fear. The Judge had a compellingevidential foundation for his conclusions.[46] Ms Rasch did not pursue her submissions regarding the appropriate approachunder the Accident Compensation Act 2001 and I take that suggestion no further.[47] Ms Rasch pointed out that both Mr Speak and Mr Allen obtained employmentwithin a relatively short time after the incident. That, however, does not preclude themfrom continuing to suffer emotional harm. The victim impact statements also speakto the significant implications the incident has had on both men's career aspirations.Both wanted to continue with a career at sea. They are no longer able to do so becauseof the emotional harm caused by the incident.[48] As to whether each victim should have received the same award, the Judge wasright to differentiate between them, given the evidence he had from the two victimswho provided victim impact statements. He was entitled to conclude that the thirdvictim would have suffered a similar experience but he did not have the same quality9 Sentencing Act 2002, s 32(1)(b).10 Of course, victim impact statements need to be considered as against the facts of the offendingand there might be cases where the claimed emotional harm could be considered disproportionateto the offending. That would not have the effect of reducing the emotional harm but might affectthe weight the Court gives to it.11 Sentencing Act 2002, s 7(1)(c) and (d); s 8(f).of information, in particular it was not known whether or not the third victim alsosuffers post-traumatic stress disorder.[49] I am satisfied there was no error in the Judge's approach to and assessment ofreparation.Assessment of culpability[50] Ms Rasch described the defendants' culpability as a careless omission. Shecontended that the defendants had not intended to exceed the stability requirements,despite the offending having taken place over the period of one year, and that it was acombination of factors, including a jammed open scupper,12 which contributed to thesinking of the Victory II. Finally, she noted that, while the overloading of theVictory II was a serious and foreseeable stability hazard, it was a survivable event.[51] In oral submissions, Ms Rasch emphasised that, although the Victory II wasbuilt in New Zealand, the stability limit was imposed in Australia. She referred to thefact that the Victory II had been operating in New Zealand since 2009 but was notpurchased by Nino's until 2014. Nino's had the Victory II surveyed on purchase andit had all its required certificates. Those certificates did not, however, alter the stabilityrequirements in the vessel stability book. In her submission, the only omission wasthe failure by Mr Basile to read the stability book, which she accepted remainedonboard the Victory II. She then said that, despite the omission, there were checks andbalances in place to ensure safety, including a qualified and experienced crew, andemergency procedures and equipment. Furthermore, Nino's had offered to negotiatean enforceable undertaking but Maritime New Zealand failed to engage. In all thecircumstances, in her submission, the defendants' culpability properly fell into the lowband.[52] The starting point must be the failures which the defendants accepted by theirpleas of guilty. These are recorded in the summary of facts as follows:23. Nino's Ltd failed to take the following reasonably practicable steps toensure the health and safety of its workers while at work on theVictory II:12 The point is that the open scupper should have been above the waterline.23.1 Nino's Ltd failed to identify the risk of overload theVictory II;23.2 Nino's Ltd failed to ensure appropriate systems were in placeto prevent overloading. For example, testing of the vessel'sloading capacity and setting limits on the weight of fishbrought on board;23.3 Nino's Ltd systematically overloaded the vessel Victory IIduring its operation at the direction of Antonio Basile; and23.4 Nino's Ltd failed to ensure the provision of adequate trainingor instruction to ensure the health and safety of workers whileon board the Victory II. For example, training on safe loadinglimits.26. Antonio Basile failed to exercise due diligence to ensure Nino's Ltdcomplied with its duties and obligations under the HSWA to ensure,so far as reasonably practicable, the health and safety of its workerswhile on board the Victory II, by:26.1 Failing to gain an understanding of the hazards and risksassociated with the nature of the commercial fishingoperation, in particular by failing to identify the loadingcapacity of the Victory II;26.2 Failing to ensure the PCBU had appropriate processes toeliminate or minimise risks to health and safety from workcarried out in that he did not ensure processes were in placeto minimise the risk of overloading and hazards associatedwith overloading;26.3 Failing to ensure a process was in place for the training of thePCBU's staff in respect of loading limitations;26.4 Failing to ensure the Victory II was not operated in a mannerthat exceeded its loading capacity, in that he directed theoperation of the vessel without regard to load limits and in amanner that exceeded those limits; and26.5 Failing to ensure the PCBU had processes for complying withits duties and obligations, by failing to ensure it hadappropriate systems in place to prevent overloading.29. During that period Shane McCauley, while at work on the Victory II,failed to comply with his duty, so far as reasonably practicable, to takereasonable care that his acts or omissions did not adversely affect thehealth and safety of others persons by:29.1 Failing to identify the risk of overloading the vesselVictory II;29.2 Failing to familiarise himself with the catch loading capacityof the vessel Victory II;29.3 Failing to ensure there were appropriate systems in place toprevent overloading of the Victory II. For example, by ensurethe weight of fish were measured while on board andpreventing further fish being brought on board once that limitwas reached; and29.4 Operating the vessel Victory II in excess of its loadingcapacity.[53] The Judge's assessment was in line with the guidance in Stumpmaster, whichrequires:13(a) the identification of the operative acts or omissions at issue. This willusually involve the clear identification of the "practicable steps" whichthe Court finds it was reasonable for the offender to have taken in termsof s 22 of the Health and Safety at Work Act;14(b) an assessment of the nature and seriousness of the risk of harmoccurring as well as the realised risk;(c) the degree of departure from standards prevailing in the relevantindustry;(d) the obviousness of the hazard;(e) the availability, cost and effectiveness of the means necessary to avoidthe hazard;(f) the current state of knowledge of the risks and of the nature and severityof the harm which could result; and(g) the current state of knowledge of the means available to avoid thehazard or mitigate the risk of its occurrence.13 Stumpmaster v WorkSafe New Zealand, above n 5, at [36].14 This will usually involve the clear identification of the "practicable steps" which the Court findsit was reasonable for the offender to have taken in terms of s 22 of the Health and Safety at WorkAct.[54] The Judge was correct when he described the factors contributing to culpabilityas the ongoing practice of overloading, the obvious risks and consequences ofoverloading, the substantial departure from industry standards and the reasonablypracticable steps available to avoid the risk.[55] Although the Judge misstated the position somewhat when he said eachdefendant knew the limit whereas the prosecution accepted neither Mr Basile norMr McCauley were aware of the limit, Mr Basile was aware of the existence of thestability book. As Mr La Hood submitted, whether or not a stability book exists, theperson conducting a commercial fishing operation, an officer of that organisation andthe skipper of a vessel should all know the loading capacity of the vessel.[56] I agree with Mr La Hood. The point is that the defendants did not take stepsto test the loading capacity of the Victory II and set limits on the weight of fish to bebrought on board. Even putting aside the stability book, one of the primary obligationsof an owner and operator of a commercial fishing vessel must be to establish theloading capacity of the vessel and ensure that its operations do not exceed that loadingcapacity. The consequences of a failure to do so in an industry where the crew fish inopen water are obvious. In simple terms, if a vessel is overloaded, it will sink, meaningthose on board will need to abandon the vessel and hope for rescue.[57] The guideline bands in Stumpmaster are:15low culpability : Up to $250,000medium culpability : $250,000 to $600,000high culpability : $600,000 to $1,000,000very high culpability : $1,000,000 plus[58] The Judge considered the guidance in [54] of Stumpmaster appropriate in thecircumstances:[54] We are satisfied a figure of $600,000 for the top of the middle bandrepresents a significant deterrent that reflects the statutory purposes. It is asubstantial figure, and one which may well be higher depending on the degreeof departure and the actual harm caused. For many businesses it will be15 Stumpmaster v WorkSafe NZ, above n 5, at [53].onerous, as the legislation intends it to be. For those for whom it is not, thelegislation makes clear the obligation of the court to consider uplifts to reflectthe relative wealth of the offender.[59] The Judge's assessment of the starting points was correct. That is, they fellnear or at the top of the medium culpability bands. The culpability inured over a periodof 12 months. The offending was even more egregious on 10 June 2017 when the loadwas already in excess of the limit but a further 10 tonnes was hauled aboard.[60] The starting points of $600,000 and $120,000 for Nino's and Mr Basilerespectively place them both at the top of the medium band. Mr McCauley's startingpoint of $40,000 placed him in the middle of the medium band, correctly reflectingthat Nino's and Mr Basile owed him health and safety obligations on which he wasentitled to place reliance.[61] The Judge made appropriate reductions to reflect mitigating factors –10 per cent for the prior good record, notwithstanding the representative nature of thecharge; five per cent for the offer of amends through an enforceable undertaking,notwithstanding that no payments were made to the victims prior to sentencing; and25 per cent for the guilty pleas.[62] Furthermore, the Judge made a significant discount to Mr Basile to avoid "anydouble punishment", given Mr Basile's position as sole director and shareholder ofNino's. As the Judge correctly observed, they were distinct legal entities. Nino's wasliable as the body conducting the business and Mr Basile was liable as an officer ofthe company. It was appropriate that Mr Basile received a separate and distinctpenalty. To do so appropriately recognises the purpose of the Act and the principlethat workers should be given the highest level of protection against harm to theirhealth, safety and welfare from risks arising from work.[63] Finally, the Judge undertook the overall assessment required and satisfiedhimself that the sentences were proportionate and appropriate. This included the factthere was no evidence before him of any financial incapacity on the part of any of thedefendants.[64] In short, the Judge approached his assessment in the correct way, arriving atthe correct conclusions in a well-reasoned judgment. There was no error and thesentence was not manifestly excessive.Result[65] For the reasons given, the appeal is dismissed.Thomas JSolicitors:Rasch Leong, Wellington for AppellantsCrown Solicitor's Office, Wellington for Respondent