OCEAN FISHERIES LTD v MARITIME NEW ZEALAND [2021] NZHC 2083

OCEAN FISHERIES LTD v MARITIME NEW ZEALAND [2021] NZHC 2083 [13 August 2021]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2020-409-000161[2021] NZHC 2083BETWEEN OCEAN FISHERIES LIMITEDAppellantAND MARITIME NEW ZEALANDRespondentHearing: 25 February 2021Appearances: J Eaton QC and S Fraser for the AppellantD La Hood for the RespondentJudgment: 13 August 2021JUDGMENT OF NATION J[1] On 18 October 2015, the fishing trawler Jubilee sank off the Canterbury coast.All three crew members drowned. Their bodies were located in the wheelhouse of thesunken vessel.[2] The appellant (Ocean Fisheries) pleaded guilty to failing to take all reasonablesteps to ensure the safety of the three men on board the fishing vessel.1 OceanFisheries appeals the reparation for emotional harm sentence imposed by Judge Couchin the District Court.2 The respondent (Maritime NZ) also appeals a decision not toorder emotional harm reparation for a sister of one of the deceased crew members onthe assumption she did not wish to receive reparation.1 Health and Safety in Employment Act 1992, ss 18 and 50(1)(a); maximum sentence $250,000 fine.2 Maritime New Zealand v Ocean Fisheries Limited [2020] NZDC 18702.Facts[3] The following brief summary of the tragedy and offending was provided bythe prosecutor and included in the Judge's decision:3The charge arises out of the foundering of the fishing trawler Jubilee on 18October 2015. The Jubilee was operated by the defendant; it was owned andmaintained by two related companies. Three crew members were aboard whenthe vessel sank: [named]. All three drowned.The precise cause of the sinking is unknown. However, it can be inferred thatthe vessel foundered. A gradual ingress of water in to the fish room affectedits stability, eventually causing the vessel to sink by the stern.All three crew members' bodies were located in the wheelhouse, where theynormally slept. It can be inferred that all on board were asleep as the fish roomgradually flooded. If any had been awake, they ought to have noticed theingress of water with sufficient time to notify the other crew and abandon thevessel. It appears that by the time that the crew awoke it was too late to escape.The defendant was obliged to take all reasonable steps to ensure that none ofthe crew was harmed while at work. It failed to take the following reasonablypracticable steps:1. Ensuring the effective identification of hazards and risks through regularrisk assessments and reviews of the hazard register by management; andensuring that identified hazards and risks, and the means of eliminatingand addressing these, were effectively communicated to crew membersby:(a) reviewing the follow-up training and competency assessmentreceived by crew members, and the quality of that training; and(b) reviewing the systems for communication about these mattersbetween management and the Master and between Master and crew;and2. Implementing effective procedural controls to eliminate or minimise therisk of water accumulating to unsafe levels in the fish room, including byinstalling alarms to warn crew of high water levels in the fish room; and3. Verifying that drills (including the "Abandon Ship" procedure) wereroutinely undertaken to check the practicality of the emergency escaperoutes.The installation of high water level alarms would likely have prevented thesinking and crew deaths.3 At [2].District Court decision[4] The Judge's decision of 16 September 2020 was carefully reasoned. He heldthere were 19 individuals entitled to reparation as parents, siblings, partners andchildren, but he excluded four children who had been estranged.[5] There had been an issue as to whether reparation should be awarded on anindividual basis or in bulk per family. The Judge awarded reparation on an individualbasis. He did so because it is individuals who are to be compensated. He cited s 32of the Sentencing Act 2002, which refers to the "person who suffered emotional harm"rather than to a family or other group. The Judge thought distribution in bulk couldlead to disputes and there could be inequity between members of different familiesbecause of the differing numbers of victims in each family. He neverthelessrecognised that courts often award similar amounts to victims who had the samerelationship to a deceased, particularly where the apparent levels of emotional harmbetween victims and their relationship with the deceased were similar.[6] The Judge rejected the submission that he should award an equal amount ofbetween $90,000 and $100,000 to each family.[7] He cited WorkSafe New Zealand v Department of Corrections:4The task of setting reparation for emotional harm in a case such as this, doesnot simply involve ordering the same amount given in other cases involving afatality. Each case must be judged on its particular circumstances. Whilecertain cases may give a broad indication of an appropriate figure, it isunhelpful to pick apart those decisions and try to pair particular features witha particular level of reparation. There is not and cannot be a tariff for the lossof life or grief.[8] For the partner and children of each of the deceased, the Judge orderedreparation of $40,000 each.[9] For the two surviving parents of one of the deceased and the mother of anotherdeceased, the Judge ordered reparation of $10,000 each.4 At [22], citing WorkSafe New Zealand v Department of Corrections [2016] NZDC 24865, [2017]DCR 368 at [25].[10] Two siblings of one of the deceased provided victim impact statements. TheJudge ordered reparation of $10,000 for each.[11] For another sibling of that deceased who had not provided a victim impactstatement and two siblings of another deceased who had also not provided victimimpact statements, the Judge ordered reparation of $5,000 each.[12] The total award of reparation for emotional harm was $505,000.[13] The Judge issued a minute dated 9 February 2021 acknowledging he erred inhis inference that the sister of one of the deceased did not wish to receive reparation.The Judge said, had he not erred, he would have ordered she be paid $5,000 reparationfor emotional harm. He said he did not have jurisdiction to correct that error.[14] The Judge also dealt with the claims made by some of the victims for loss ofincome as a result of the death of their partner or father. Those aspects of his decisionare not subject to appeal so I do not detail them further except to mention theconclusion the Judge came to.[15] Actual amounts awarded had been agreed to by the parties once they had beenadvised of the approach the Judge was going to take in awarding reparation foreconomic loss. The total sum was $230,325.25, to be paid as follows:The partner of one of the deceased $54,908.56Three of a deceased's children $5,477.61$30,270.96$54,908.56The partner of another deceased $52,414.61A child of that deceased $32,344.95[16] The Judge ordered reparation of $2,000 to a child for travel costs she incurredin returning to New Zealand for her father's funeral.[17] The Judge then moved to the next step of determining the fine, with regard tothe guideline judgment of the full Court in Hanham & Philp Contractors Ltd.5[18] He began by assessing the culpability of Ocean Fisheries. He noted thatcounsel for Ocean Fisheries had accepted "the installation of appropriate detectors andalarms would likely have prevented the sinking and loss of life" and said the"defendant also accepts that the installation of such a system would not have beendifficult or costly".6 He accepted that it had not been industry practice to fit such asystem in vessels operating in the circumstances of the Jubilee, and this was a relevantconsideration when assessing culpability. He said there was no suggestion that OceanFisheries deliberately took unacceptable risks or breached any regulations. He said,rather, Ocean Fisheries' failures were the result of insufficient care to ensure that allappropriate safety measures were taken.7[19] The Judge regarded the culpability in this case as just over the middle of themedium band in Hanham & Philp. He arrived at a starting point fine of $80,000. Itwas agreed there were no personal aggravating factors relating to Ocean Fisheries thatwarranted an uplift.[20] The Judge allowed a credit of 10 per cent for the way Ocean Fisheries hadcooperated fully with the investigation conducted by Maritime NZ and the way it hadtaken appropriate steps to improve all aspects of its operation which were the subjectof the prosecution. He considered a further reduction was appropriate to recognise thepayment of the very substantial reparation he was ordering and the practical andemotional support Mr Stark, the sole director and CEO of Ocean Fisheries, and hiswife had provided to the families of the three crew members. When the Police calledoff their search for the vessel, they continued with a private search. They gave eachfamily $5,000 cash in case joint bank accounts had been frozen and, in the two weeksfollowing the accident, gave each family a further $15,000. In their victim impactstatements, some family members had also praised Mr Stark for maintaining contactwith them and keeping them informed throughout the long passage of the case through5 Department of Labour v Hanham & Philp Contractors Ltd (2008) 6 NZELR 79.6 Maritime New Zealand v Ocean Fisheries Limited, above n 2, at [68].7 At [74].the court. For this combination of reparation and remorse, the Judge reduced the fineby 15 per cent.[21] A guilty plea had not been entered until three and a half years after theproceedings began. The Judge noted various pre-trial applications that had beenpursued. Having regard to the entire history of the proceedings, the Judge reduced thefine by 17.5 per cent to recognise the guilty plea. Overall, the fine was reduced by42.5 per cent on account of mitigating factors so as to end at $46,000.[22] The Judge then said:[89] The final step in the process established in Hanham & Philp involvesa consideration of the total imposition on the defendant of the orders forreparation and the fine. The total penalty imposed must be proportionate tothe circumstances of the offending and of the offender. In this case, the totalpenalty is $783,325.25, the very large majority of which is for reparation.Given that the reparation relates to 19 people who, in each case, lost a closefamily member and the fine adds relatively little to it, I consider the total isappropriate. There is no issue about the ability to pay the amounts involved.I am told the reparation will be met by insurance and I understand that thebasis for resolution reached earlier this year includes an undertaking by theStark family to meet the fine.Principles on appeal[23] Appeals against sentence are allowed as of right by s 244 of the CriminalProcedure Act 2011 and must be determined in accordance with s 250 of that Act. Anappeal against sentence may only be allowed by this Court if it is satisfied there hasbeen an error in the imposition of the sentence and that a different sentence should beimposed.8 As the Court of Appeal mentioned in Tutakangahau v R, quoting the lowercourt's decision, a "court will not intervene where the sentence is within the range thatcan properly be justified by accepted sentencing principles".9 It is only appropriatefor this Court to intervene and substitute its own views if the sentence being appealedis "manifestly excessive" and not justified by the relevant sentencing principles.108 Criminal Procedure Act 2011, ss 250(2) and 250(3).9 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].10 Ripia v R [2011] NZCA 101 at [15].Approach to sentencing[24] The three-step sentencing process for health and safety offending was set outby a full bench of the High Court in Hanham & Philp Contractors:11(a) Assess the amount of reparation;(b) Fix the amount of the fine; and(c) Make an overall assessment of the proportionality and appropriateness ofthe total sentence.Grounds of appeal[25] Ocean Fisheries do not appeal the orders for reparation for consequential lossor the fine imposed. The appeal relates only to the amount of reparation for emotionalharm.[26] As to this, Ocean Fisheries raised the following grounds of appeal:(a) the emotional harm award is disproportionate to the appellant'sculpability;(b) both the methodology for calculation and the amount of emotional harmreparation are inconsistent with comparable cases;(c) the Judge erred in failing to reduce the level of emotional harm paymentto reflect the $60,000 already paid by OFL to the families; and(d) the Judge erred in ordering reparation to the son of one of the deceasedand two sons of another deceased where the Court did not have victimimpact statements.[27] Mr Eaton QC submitted that total emotional harm reparation should bebetween $270,000 and $300,000.11 Department of Labour v Hanham & Philp Contractors Ltd, above n 5, at [80].[28] Maritime NZ raised the further sister's entitlement to reparation as a ground ofappeal.Culpability / Causation[29] Mr Eaton submitted reparation ought to be proportionate to Ocean Fisheries'level of culpability. He linked culpability with causation and pointed out thatcausation is required for a sentence of reparation. He submitted that direct and strongcausation justified a higher award of emotional harm. He referred to Idea Services Ltdand Ritchies Transport to support this proposition.12[30] Mr Eaton referred to cases where no reparation was ordered because there wasno causative link between a defendant's failures and the consequent injury or death,13and a case where the Court apportioned liability for reparation between multipledefendants to reflect different levels of culpability.14 He submitted these cases supportthe proposition that culpability is relevant to fixing the quantum of emotional harmreparation.[31] Mr Eaton submitted the only causative failing was the failure to install alarmsto warn crew members of high-water levels in the fish room. He then submitted thiswas not industry practice and, in any event, its causative link was speculative. Heassessed culpability and causation as low and argued that should reduce reparation.[32] Mr La Hood, for Maritime NZ, submitted that culpability and causation are notgenerally relevant to setting reparation. He argued reparation is compensatory ratherthan punitive. He said culpability goes to the appropriate fine rather than theappropriate level of compensation. He submitted this was the approach of the HighCourt in both Hanham & Philp and Stumpmaster.15[33] Mr La Hood submitted culpability can only be relevant in one of two ways:12 WorkSafe New Zealand v Idea Services Ltd [2015] NZDC 3696, [2015] DCR 210; and WorkSafeNew Zealand v Ritchies Transport Holdings Ltd [2019] NZDC 18495.13 WorkSafe New Zealand v New Zealand Defence Force [2020] NZDC 21437; and Civil AviationAuthority v Helicopter Line Ltd [2018] NZDC 3559, [2018] DCR 551.14 WorkSafe New Zealand v Alderson Poultry Transport Ltd [2019] NZDC 25090.15 Department of Labour v Hanham & Philp Contractors Ltd, above n 5; and Stumpmaster vWorkSafe New Zealand [2018] NZHC 2020, [2018] 3 NZLR 881.(a) it could be an indicator of specific emotional harm; or(b) it could assist in apportioning reparation between multiple defendants.[34] Mr La Hood argued Ocean Fisheries wrongly conflates culpability with thecausative link between offending and harm. He also submitted it was not open to theappellant to argue it was "speculative" that the high-water alarm would have meantthe crew could have safely escaped. That was contained in the summary of facts,which the appellant had accepted. He pointed out the appellant had already concededthis point by acknowledging that, under s 32 of the Sentencing Act, the Court couldimpose a sentence of reparation.Discussion[35] Section 32 of the Sentencing Act states:32 Sentence of reparation(1) A court may impose a sentence of reparation if an offender has, throughor by means of an offence of which the offender is convicted, caused aperson to suffer—(a) loss of or damage to property; or(b) emotional harm; or(c) loss or damage consequential on any emotional or physical harm orloss of, or damage to, property.(2) Despite subsection (1), a court must not impose a sentence of reparationin respect of emotional harm, or loss or damage consequential onemotional harm, unless the person who suffered the emotional harm is aperson described in paragraph (a) of the definition of victim in section 4.[36] "Victim" is relevantly defined as:16victim—(a) means—(i) a person against whom an offence is committed by another person;and16 Sentencing Act 2002, s 4.(ii) a person who, through, or by means of, an offence committed byanother person, suffers physical injury, or loss of, or damage to,property; and(iii) a parent or legal guardian of a child, or of a young person, who fallswithin subparagraph (i) or subparagraph (ii), unless that parent orguardian is charged with the commission of, or convicted or foundguilty of, or pleads guilty to, the offence concerned; and(iv) a member of the immediate family of a person who, as a result of anoffence committed by another person, dies or is incapable, unlessthat member is charged with the commission of, or convicted orfound guilty of, or pleads guilty to, the offence concerned [37] For the purposes of paragraph (a)(iv), "immediate family" is defined as:17immediate family, in relation to a victim,—(a) means a member of the victim's family, whanau, or other culturallyrecognised family group, who is in a close relationship with the victim atthe time of the offence; and(b) to avoid doubt, includes a person who is—(i) the victim's spouse, civil union partner, or de facto partner; or(ii) the victim's child or stepchild; or(iii) the victim's brother or sister or step-brother or step-sister; or(iv) a parent or step-parent of the victim; or(v) a grandparent of the victim[38] Courts must make an order for reparation where an offender has caused one ofthe forms of harm set out in s 32(1). That is made clear by s 12:12 Reparation(1) If a court is lawfully entitled under Part 2 to impose a sentence or orderof reparation, it must impose it unless it is satisfied that the sentence ororder would result in undue hardship for the offender or the dependantsof the offender, or that any other special circumstances would make itinappropriate.(1A) When considering undue hardship or other special circumstances undersubsection (1), a court must not take into account that the offender isrequired to pay a levy under section 105B.(2) A sentence of reparation may be imposed, in relation to any particularoffence, on its own or in addition to any other sentence.17 Sentencing Act, s 4.(3) If a court does not impose a sentence or order of reparation in a casewhere it is lawfully entitled to do so, it must give reasons for not doingso.(4) In this section, order of reparation means an order under section106(3)(b), 108(2)(b), or 110(3)(b).[39] Ocean Fisheries accept that, in terms of s 32(1), reparation for emotional harmhad to be ordered. It accordingly accepted, and still accepts, that the offence of whichit was convicted caused people, who came within the definition of victims in theSentencing Act, emotional harm through the death of one of their family.[40] I do not accept the submission that it was "entirely speculative" as to whether,if an alarm had sounded, the three crew members would have been able to take stepsto safely escape the sinking vessel.[41] The summary of facts said:The precise cause of the vessel sinking is unknown. However, in the absenceof any evidence of a catastrophic event, it can be inferred that the cause of thevessel sinking was gradual ingress of water into the fish room, which affectedthe vessel's stability, eventually causing the vessel to sink by the stern.[42] The agreed summary of facts referred to the three crew members bodies beinglocated in the wheelhouse, of it being inferred they must have all been asleep as thefishroom gradually flooded and they awoke too late to escape.[43] Ocean Fisheries argued the Judge had recognised that culpability was relevantin fixing the appropriate level of reparation but failed to carry that assessment throughto the reparation quantification.[44] In his sentencing remarks, Judge Couch referred to a statement from Powell Jin the High Court in McKee v WorkSafe New Zealand.18 There, Powell J discussed theway in which reparation for consequential financial loss was to be calculated. PowellJ said:[21] Similarly, in relation to high income earners, while the loss to aparticular victim may in fact be considerable the Court clearly retains adiscretion as to whether to order the full amount of consequential loss not only18 McKee v WorkSafe New Zealand [2020] NZHC 1002.because of the various factors noted in Oceana, but also because it maybeinappropriate and/or unreasonable in terms of the totality of the offending forwhich the defendant is being sentenced.[45] Judge Couch went on to say:[47] On this basis, Powell J concluded that it was wrong to calculatereparation on any basis other than her actual pre-accident earnings and that theDistrict Court Judge was wrong to have used an inflated figure.[48] The same principles should be applied in this case. It is the actual pre-accident earnings of the deceased which are to be taken into account whencalculating reparation for the statutory shortfall in earnings relatedcompensation paid to victims. Once those calculations are done, there remainsa discretion whether the whole of that amount should be ordered but that is amatter for consideration at the end of the sentencing process where the overallpenalty of reparation and fine must be reviewed in light of the defendant'sculpability and ability to pay.[46] The comments of both Powell J and Judge Couch as to the residual discretionavailable to the Court were related to the awards of reparation for consequential loss,not emotional harm. In any event, here, the Judge did consider the overall impact ofboth reparation and a fine at the third stage of the sentencing process. He concludedthat in the context of an offence that caused the death of three men and reparation wasfor 19 people, the total penalty was proportionate to the circumstances of theoffending.19[47] Ocean Fisheries did not seek to advance their appeal on the basis that the totalamount of the reparation and fine was not proportionate to the circumstances of theoffending and the offender.[48] As counsel referred to, there have been cases where the courts have refused tomake orders for reparation because defendants have not been culpable in a way thatcontributed to a death or injury.20[49] The lack of causation was relevant not to the level of reparation that ought tobe paid but to the threshold for the making of any reparation order as referred to in s32(1).19 See para [22] above.20 WorkSafe New Zealand v New Zealand Defence Force, above n 13; and Civil Aviation Authority vHelicopter Line Ltd, above n 13.[50] Mr Eaton referred to the judgment in Idea Services Ltd as a case whichindicated culpability had been of relevance in assessing reparation.21 I accept theJudge in that case did proceed on that basis.[51] There, a young man had died while in the care of an IHC service provider,drowning after being left alone in a bath. A risk assessment had confirmed he requiredfull assistance with washing and drying, required supervision and could not be leftalone. Operational policies required a person to always be present when bathing.[52] Consistent with the Hanham & Philp approach, the Judge first consideredreparation.22 In that context, she discussed the circumstances of the death beforeconcluding:[75] In my view there is high culpability in this case particularly becauseof [the deceased's] vulnerability and special needs as well as the nature of theservices being provided to him by the defendant company. In my viewreparation needs to be at, or near the top of the range.[53] Some support for the Ocean Fisheries argument could have been gleaned froma footnote to Thomas J's judgment in the High Court in Nino's Ltd v Maritime NewZealand.23 There, Thomas J said "there is no indication that Parliament intendedjudges to undertake some sort of critical analysis of the harm claimed to have beensuffered by a victim". But, in the footnote:Of course, victim impact statements need to be considered as against the factsof the offending and there might be cases where the claimed emotional harmcould be considered disproportionate to the offending. That would not havethe effect of reducing the emotional harm but might affect the weight the Courtgives to it.[54] Despite what was said in the District Court in Idea Services Ltd, I do not acceptthe degree of culpability of the offending should impact on the assessment ofappropriate reparation. As was stated by the full Court in Hanham & Philp:24[33] Reparation is compensatory in nature and is designed to recompensean individual or family for loss, harm or damage resulting from the offending.On the other hand, a fine is essentially punitive in nature, involving the21 WorkSafe New Zealand v Idea Services Ltd, above n 12.22 At [51].23 Nino's Ltd v Maritime New Zealand [2020] NZHC 1467, (2020) 17 NZELR 483.24 Department of Labour v Hanham & Philp Contractors Ltd, above n 5.imposition of a pecuniary penalty imposed by and for the state. A fine isintended to serve the statutory purposes of denunciation, deterrence andaccountability. Each requires separate attention in the sentencing process.[55] The full Court said the assessment of reparation required a consideration of thestatutory framework, taking into account any offer of amends and the financialcapacity of the offender. They did not refer to the culpability for the offending or thedegree to which the offending was causative of the loss as matters within the statutoryframework which it had mentioned. The statutory framework which the Court referredto included ss 32 to 38 of the Sentencing Act, of which they said s 32 was the mostrelevant. They also referred to s 14 of the Sentencing Act and s 51A(2)(b) of theHealth and Safety in Employment Act 1992, and ss 35 and 40 of the Sentencing Act.These referred to the financial capacity of the offender as being relevant to the fixingof reparation and fines.[56] There was no suggestion from the full Court in Hanham & Philp that, once itwas accepted a death or injury resulted from the offending, the extent to which theoffending caused the loss would be relevant in assessing the level of reparation.[57] It was in relation to the second step and the fixing of a starting point for thefine that the High Court, in line with the Taueki approach to sentencing, said there hadto be an assessment of the culpability for the offending.25[58] In Stumpmaster v WorkSafe New Zealand, a full High Court revisited theHanham & Philp approach to sentencing in light of the Health and Safety at Work Act2015.26 In their approach, the assessment of the amount of reparation was still to bedistinct from the fixing of the fine. It was in relation to the latter that the Court is tohave regard to aggravating and mitigating factors of the offending.[59] In R v Donaldson, the Court of Appeal discussed how s 32(1) was to beapproached.27 The Court said:25 Department of Labour v Hanham & Philp Contractors Ltd, above n 5, at [54], [55] and [80].26 Stumpmaster v WorkSafe New Zealand, above n 15.27 R v Donaldson CA227/06, 2 October 2006.[33] For all that we do not see the use of "caused" in s 32 as dictating achange in approach. The words "through or by means of an offence" remainand provide the controlling concept.[34] In terms of the approach to this concept it is important to recognise thenature of a reparation order, as compared to a fine, and the interrelationship ofthe two. A fine is punitive. It is a pecuniary penalty imposed by and payableto the state. By contrast, an order for reparation is compensatory in nature.Reparation is intended, wherever possible, to restore the victim's position inrelation to property loss or damage, emotional harm, or consequential losses.[60] The Court referred to various provisions in the Sentencing Act that limitawards of reparation but they emphasised that a sentence of reparation iscompensatory in nature. They said "we endorse the viewpoint that reparation is to beapproached in a broad common-sense way, and resort to refined causation argumentsis not to be encouraged".28[61] Maritime NZ submitted an offender's culpability is relevant to the assessmentof reparation in only two specific situations. The first was where factors whichheightened the offender's culpability, breaching known and explicit duties, made theemotional harm to the victims all the greater because of their awareness that the riskswere known and avoidable. Maritime NZ submitted Idea Services was an example ofthis.29[62] In Idea Services, the Judge referred to the high level of culpability as a factorwhich she had considered in assessing reparation. I do not consider the Judge'srationale for doing this was as suggested for Maritime NZ.[63] It could be said an example of the rationale for an increased reparation award,as adverted to by Maritime NZ, was WorkSafe New Zealand v Department ofCorrections.30 There, the Department was being sentenced following the death of anoffender who was killed when struck by a log while under the supervision of theDepartment on a community work sentence. In assessing reparation, the Judge saidshe considered the case different from others because Corrections had placed the28 At [36].29 WorkSafe New Zealand v Idea Services Ltd, above n 12.30 WorkSafe New Zealand v Department of Corrections, above n 4.offender in the situation where the death occurred and had a statutory responsibilityand ability to ensure how work in that situation was undertaken.[64] I do not consider this was logically a reason for increasing the amount ofreparation award above what would be appropriate in other cases where a person iskilled in the workplace where the deceased, their family and loved ones would havehad an expectation that workers would be safe at their workplace and employers wouldcomply with all their obligations under the Health and Safety in Employmentlegislation.[65] If reparation awards were to be increased on the basis referred to in Departmentof Corrections, awards would be higher with increased culpability. If that is to be areason for an increased reparation award, logically awards should be less if culpabilityis lower. However, I consider a breach of duties and a failure to meet expectations inthe sort of circumstances that existed in Department of Corrections should moreappropriately be considered in assessing the degree of culpability of the offending atthe second stage of the sentencing process, and thus the starting point for a fine, ratherthan the amount to be paid in reparation. That is more consistent with the approach inthe leading cases of Stumpmaster, Hanham & Philp and Donaldson.[66] Consistent with that approach, I note that Judges have not had regard to suchexpectations of safe supervision and the culpability of the offending in assessingreparation in somewhat comparable cases.31[67] Maritime NZ submitted the other circumstances in which the level ofculpability and the degree to which an offender's culpability had contributed to thedeath or injury could be relevant in assessing reparation was when there were severaloffenders before the court and the appropriate reparation had to be apportionedbetween them.31 Ministry of Business, Innovation and Employment v Taranaki Outdoor Pursuits and EducationalCentre Trust DC New Plymouth CRI-2013-043-000271, 23 October 2013; and R v New ZealandSchool of Outdoor Studies Ltd [2016] NZDC 3081.[68] In Ritchies Transport, the sentencing Judge said:32I accept that an offender's culpability can, in some circumstances be a factorin determining reparation. Degrees of culpability may be a relevantconsideration when reparation can be apportioned between identifiedoffenders at sentencing. Where there are two or more defendants, the totalamount of reparation is frequently apportioned between defendants accordingto their culpability for the harm sustained.[69] The Judge went on to say that the non-prosecuted driver's culpability was nota consideration in setting the level of reparation at this step in the process. The Judgereferred to Stumpmaster clearly stating culpability was a factor for consideration indetermining the level of fine.33[70] I accept that the degree of culpability and responsibility for the death thatoccurred may be relevant in considering and deciding how the appropriate reparationshould be apportioned between several offenders who are before the Court and liableto pay reparation.34 However, in such a situation, the quantum of reparation requiredto recognise the emotional harm done to a victim is not assessed according to thedegree of culpability. The level of compensation is fixed in recognition of the harmcaused. Culpability is relevant only to the way payment of the appropriatecompensation is apportioned between co-defendants.[71] A death or an injury for which reparation for emotional harm must be orderedmay occur in certain circumstances where the particular circumstances of theoffending causes particular harm to a victim.35[72] In WorkSafe New Zealand v Alderson Poultry Transport Ltd the deceased wasrun over by a forklift in the workplace in front of her husband who also worked there.A death in such a situation could logically and rationally lead to a higher award for32 WorkSafe New Zealand v Ritchies Transport Holdings Ltd, above n 12, citing R v Leslie LewisCA7/98, 17 June 1998 (footnotes omitted).33 At [47].34 Consistent with the decision in WorkSafe New Zealand v Alderson Poultry Transport Ltd, aboven 14; see also Simon France (ed) Adams on Criminal Law: Sentencing (online loose-leaf ed,Thomson Reuters) at SA.11.35 WorkSafe New Zealand v Alderson Poultry Transport Ltd, above n 14. See also McKee v WorkSafeNew Zealand, above n 18.reparation but that would not be because of a greater degree of culpability or becausethe offending was more causative of the injury or death.[73] I find that, at the first stage of the sentencing process, once it has beenestablished that an offender has, through or by means of an office of which the offenderis convicted, caused a person to suffer loss of the sort for which reparation might beordered, the culpability of the offender and the extent to which the offending causedthe relevant harm or loss will not be relevant to the assessment of quantum.[74] I accordingly do not accept the submission that, in the first step of thesentencing process for this offence, the Judge should have modified what he wouldotherwise have found to be an appropriate level of reparation by reason of either hisassessment as to the culpability of the offending or because that offending was not thesole cause of the deaths of the crew members for which the victims were entitled tocompensation.Inconsistency with comparable cases of the methodology adopted for calculationof emotional harm reparation[75] Judges in the District Court and High Court have, on a number of occasions,apportioned a total award of reparation between various family members in differingamounts. From my reading of the workplace fatality cases, this is the first occasioneither Court has been asked to award emotional harm reparation by reference to whatthe Court considers appropriate for individual victims rather than by calculating thetotal that should be awarded. The issue on appeal is whether there was any error inthe Judge's approach to awarding reparation.[76] The first step in the sentencing process is to decide if there are victims of theoffending who are entitled to compensation and to fix and award the reparation towhich they are entitled. The entitlement to reparation has primacy in the sentencingprocess so the level of reparation to be paid will impact on the level of any fine that isto be imposed. That is an incidental consequence of the awarding of reparation, notthe purpose of the reparation award.[77] The awards of emotional harm reparation made in the District Court can beanalysed in different ways:(a) total award $505,000;(b) on a per family basis:(i) $185,000 was awarded to one deceased's partner, three children,both his parents and a sibling;(ii) $160,000 was awarded to another deceased's partner and threechildren;(iii) $160,000 was awarded to another deceased's three children, motherand four siblings; and(c) by relationship, partners $40,000 each, children $40,000 each, parents$10,000 each, siblings who had provided victim impact statements$10,000 each, siblings who had not provided victim impact statements$5,000 each.[78] The Judge said he had analysed six District Court decisions where reparationfor emotional harm was awarded to individual family members. He said that inanother six cases decided in the District Court reparation was ordered "in bulk" to thefamily.[79] The Judge arrived at what he considered to be appropriate reparation bydeciding what reparation was appropriate for individual victims, but with victims inbroadly similar circumstances and of the same relationship to the deceased beingtreated the same.[80] Having assessed the reparation payable in this way, the Judge did not then totalthe awards on a per family basis and consider whether those totals were appropriate,having regard to total awards of reparation on a per family basis in other cases. It hadnot been suggested for Maritime NZ that he needed to.[81] The Judge expressly rejected the submission from Ocean Fisheries that theaward should have been between $90,000 and $100,000 for each family, such amountto be split equally between the members of the family.[82] The Judge said this would result in an inequity in that those in the smallerfamilies would receive less than those in larger families although the deaths for whichthey were to be paid reparation for emotional harm had occurred in identicalcircumstances when the victims relationship to the deceased were similar.[83] The Judge also said his "overall perception of the trend in sentencing in thisarea is that references to a bulk amount of reparation in most cases are largely toprovide clarity in the sentencing process by making it easier to assess the size of fineto be imposed".[84] In summary, Ocean Fisheries' criticisms of the awards of reparation in this casewere:(a) the awards were separately or in total for amounts that were not consistentwith reparation for emotional harm awarded in other cases;(b) individual awards were calculated effectively on a tariff rate based on thenature of the familial relationship; and(c) for consistency with the pattern of other cases, reparation should beordered only for the closest immediate family. The Court should identifythe total amount of reparation to be made under s 32 of the Sentencing Actbefore deciding how that reparation should be apportioned betweendifferent family members;(d) reparation should not be awarded for emotional harm in respect of everyimmediate relative without an evidential basis;(e) reparation should have been awarded on a family basis for distributioneither according to the wishes of the families themselves or, if agreementbetween family members is not feasible, to the same family members ofeach crew member in the same manner as the District Court decision on apro rata basis.[85] Ocean Fisheries referred to s 8 of the Sentencing Act and the direction fromthe Supreme Court in Hessell v R for Judges to take into account sentencing outcomesto reflect the policy of like treatment for similar offending in similar circumstances.36[86] Ocean Fisheries submitted:(a) the methodology employed by the Judge here to determine the amount ofreparation was not consistent with other cases.(b) the Judge had started from the position there were 19 surviving victimsentitled to consideration for reparation. The Judge then went on tocalculate individual awards on what they submit was effectively a tariffrate based on the nature of the familial relationship. The total wasdetermined by adding all the individual awards together.(c) the Judge was in error in not considering the total amount of reparation tobe paid. The correct approach, consistent with that taken in other cases, isto first identify the range of reparation amounts that have been awardedfor emotional harm in similar case and then to determine the appropriateamount of reparation to be paid for the harm caused in the particular case.With this approach, the sentences of reparation for emotional harm wouldremain consistent with the range of sentences imposed in other cases.Differing approaches to allocating emotional harm reparation betweenfamily members might be equally valid but that assessment ought to occuronce the Court had already identified the amount of reparation to be madeunder s 32 of the Sentencing Act.(d) Accordingly, the Judge should have arrived at a figure comparable to thatadopted in other cases for each family of the deceased and then allocatedthat sum between the individuals in the family as the Judge, on a broadbased approach, determined was appropriate.36 Sentencing Act, s 8E; Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607, at [43].(e) the Judge was in error in the way he had analysed District Court decisionswhere he had said there had been awards of reparation to individual familymembers. In all instances, the District Court nevertheless determined thetotal reparation which was to be paid. This was done in a way whichachieved consistency with other reparation orders and it was only after theCourt had assessed appropriate total reparation that the Judges decided,when in the circumstances of the particular case this was necessary, howthat total reparation was to be apportioned. In all cases, the approach ofthe District Court was thus to assess reparation on a per family basis, ratherthan simply assessing reparation on an individual basis. It was throughadopting the latter approach that the Court arrived at an amount for totalreparation which was inconsistent with reparation awards in other cases.(f) The approach of all cases, in both the District Court and High Court, hadbeen to consider the overall amount of reparation that should be imposedfor emotional harm and for the Court to then take into account particularfacts and variables or case-specific factors when making the finaldetermination.[87] In its memorandum for sentencing in the District Court, Maritime NZ had saidit was submitting that Ocean Fisheries should pay emotional harm reparation totalling$530,000. It submitted that "reparation in the range of $100,000 to $200,000 (total)is typically awarded to the surviving family of a worker killed while at work" butsubmitted it would not be appropriate to award a single lump sum for each of thedeceased's families to be divided between the family members. They submitted thecrew members had a variety of family structures and were survived by differentnumbers of immediate family members. Reparation had to be fairly apportioned.Maritime NZ argued that emotional harm reparation of $40,000 should be awarded foreach spouse and each child of a deceased crew member with $10,000 emotional harmreparation for other immediate family members.[88] Maritime NZ submitted the Judge did not ignore the desirability of consistencyin first arriving at making individual awards. They argued that the Judge hadimplicitly considered awards in similar cases for victims in similar relationships to thedeceased. They submitted where the defendant's offending has multiple victims theoffending has created greater harm. Greater harm requires greater reparation. Theysubmitted this is the scheme of ss 12 and 32 of the Sentencing Act. To illustrate, theyreferred to reparation that would be required from a dangerous driver who collidedwith a vehicle carrying three passengers. In accordance with the principles of theSentencing Act, they said such an offender would be required to pay more in reparationthan a similarly dangerous driver who had collided with an empty parked car.[89] Maritime NZ submitted there is no basis in either law or logic to impose anartificial cap on the end reparation available for an individual victim in the way OceanFisheries suggest is necessary. Emotional harm does not diffuse within a family unit.The harm for which reparation is to be paid is not less within a smaller family than itis for an individual within a larger family.[90] They argued the approach the Judge adopted in this case, while different fromthat adopted in many other case, nevertheless did recognise a need for consistency.They also argued it was appropriate in what they said were the relatively unusualcircumstances of the case where there were three deaths and a complex web of familyrelationships which meant the statutory class of victims was large.My analysis[91] Ocean Fisheries put before me 31 sentencing decisions or judgments, mostlyfrom the District Court, where Judges were having to order reparation for emotionalharm where death had resulted from work place accidents where employers werefound to have offended against workplace safety legislation.37 I have read all thosejudgments. In nearly every instance, the sentencing Judge referred to the total amountawarded for emotional harm reparation in other cases, or as referred to by counsel, indeciding what reparation should be awarded in the case they were dealing with. It wasalso clear that, in nearly all those cases, the informant, usually WorkSafe New Zealand,had asked for total reparation at a certain figure with reference to the total awards ofreparation in other cases. The informant had thus sought awards that in total wereconsistent with other cases.37 Health and Safety at Work Act 2015; and Health and Safety in Employment Act 1992.[92] The approach contended for by Ocean Fisheries might be seen to have somepractical advantages. Many employers, as here, will be insured for any liability theymight have through a reparation order. The award of reparation on a per family basiswould make it easier for an insurer to calculate the potential liability they and theinsured might have arising out of a potential workplace fatality at the business theyare insuring. It would also make it easier for informants such as Maritime NZ orWorkSafe to assess what would likely be an appropriate award for reparation arisingas a result of an offence that results in a workplace death.[93] The Sentencing Act recognises the value of an offender taking responsibilityfor the harm that results from an offence and an acknowledgement of that harm, andto provide for the interests of the victim of an offence[94] The purposes of sentencing include promoting in the offender a sense ofresponsibility for and an acknowledgement of harm that results from an offence,38providing for the interests of the victim of an offence,39 and to provide reparation forharm done by the offending. The principles of sentencing otherwise require the Courtto take into account any outcomes of restorative justice processes that have occurredin relation to a particular case.40 Section 10 requires the Court to take into accountany offer of amends and any agreement between the offender and the victim as to howthe offender may remedy the loss or damage caused by the offender.[95] Through the Sentencing Act, Parliament recognised the value to victims of anagreement being reached over reparation that could be paid for emotional harm.Assessing reparation on a family basis, without the employer and informant having toput before the offender detailed information as to the circumstances of a deceased'sfamily, would make it easier for employers or their insurers to determine andpotentially agree on what would be appropriate reparation.[96] The Sentencing Act however provides for a Court to order reparation for thosewho come within the definition of "victim" on an individual basis, without any cap on38 Sentencing Act, s 7(1)(b).39 Section 7(1)(c).40 Section 8(j).either the total amount that might be awarded for all individuals or for any group ofindividuals.41[97] As the Judge noted, s 32(1) provides for reparation to be paid where it hascaused a person to suffer emotional loss. That person must come within the relevantdefinition of victim.[98] There is no express reference to the Court being able to impose a sentence ofreparation for families or other groups. This does not mean that reparation for a personcould not be provided for, as it often is, through an order that reparation be paid to afamily but the assessment of appropriate reparation on a person-by-person basis isconsistent with the wording of s 32(1) of the Sentencing Act.41 In contrast to the provisions for reparation in the Sentencing Act, the Accident Compensation Act2001 sets out a formula by which compensation can be provided to the family of a person killedor injured by accident. A surviving spouse or partner is entitled to compensation equivalent to 60per cent of the earner's entitlement, that is 80 per cent of the deceased earner's pre-injury earnings.The compensation is payable until the latest of specified periods. A child of the deceased is entitledto compensation equivalent to 20 per cent of the earner's 80 per cent entitlement, again for certainspecified periods. The total compensation payable to family members of a deceased earner iscapped at the earner's entitlement. Because of the cap, compensation may have to be paid tofamily members on a pro rata basis. (See the discussion in Sarginson v Civil Aviation Authority[2020] NZHC 3199 at [155]−[161]).The way the Sentencing Act allows for emotional harm reparation to be paid on an individual basisis also in contrast to the way overseas jurisdictions have provided for such compensation to bepaid.In the United Kingdom, the Law Commission in November 1999 considered possible legalreforms to allow bereavement damages for grief to be claimed in addition to damages for financialloss as the law in the UK permitted. In their report, they stated that "virtually every consultee toexpress a view on the matter agreed with out provisional view that distressing and distastefullitigation about whether a claimant is aggrieved should not be countenanced". That led them torecommend that proof of actual loss (that is, actual mental distress) should continue not to be anecessary condition for an award of bereavement damages. For the same reason and because"there was strong concern about any enquiry into the existence or extent of an individual's grief",they recommended that the award of bereavement damages should continue to be a fixed sum.(Law Commission "Claims for wrongful Death" (UKLC 263, 1999).In a number of comparable jurisdictions, including Australia and the United Kingdom, there is nocomprehensive accident compensation scheme as New Zealand has with ACC. The ability toclaim bereavement damages is governed by the common law, as modified by statute. At least in2014, the majority of Australian states and territories continued to restrict recovery in cases ofwrongful death to pecuniary loss. One of the reasons for that was the perceived problems inherentin determining who should be entitled to award and the terms on which it should be available. SeeIan Field "in mourning of bereavement damages" (2014) 22 TLJ 95; and Law Reform Commission"Compensation to relatives" (NSWLRC 131, 2011) at 69. The UK and certain Australian stateshad established schemes for criminally caused death but with those schemes there is a statutorycap on the maximum amounts that might be awarded for either single claimants or on the amountsthat might be awarded and the persons who might claim. See Professor Field's article, pages 117to 125.[99] In Sarginson v Civil Aviation Authority, Mander J in the High Court had toconsider whether the District Court had been correct in calculating loss of earningsreparation from a starting point of 80 per cent of the deceased's income because, underthe ACC scheme, the surviving family's compensation payments would have beenbased on 80 per cent of the deceased's income.42 Mander J said:[171] I do not consider the approach taken by the District Court to thecalculation of the statutory shortfall is consistent with the wording and historyof s 32(5) of the Sentencing Act, nor does it adequately reflect the status ofspouses/partners and children of the deceased as victims in their own right.43[100] Here, in accordance with the submissions made by Maritime NZ, the Judgeapproached reparation in the way he did because of the particular circumstances of thecase. One relevant matter he took into account was that, although the three deceasedhad all died in similar circumstances, their family circumstances were different. TheJudge noted that, in many respects, the emotional harm those in the victims' familiessuffered was the same but the number of victims in each family was different (eight inone instance, seven and four in the two others). Were an equal amount to be awardedto each family, as Ocean Fisheries suggested would be appropriate, this would be toequate the level of emotional harm suffered by each of the members of the largestfamily as being less than that of the members of the smallest family.[101] Ocean Fisheries seemed to acknowledge there could be inequity in this butsubmitted there would be a greater inequity if the total amount which Ocean Fisherieshad to pay was significantly more than in other cases, simply because, with theparticular circumstances and number of each deceased's family, the amount to be paidin reparation had to be greater. They submitted that the approach adopted by the Judgeresulted in "a more perverse inequity".[102] I do not accept that the approach adopted in the District Court resulted in a"perverse inequity". The Judge's approach was consistent with the legislation.[103] I do not consider that, when the particular circumstances of a case require it,an award calculated on an individual basis will be unfair or an error simply because it42 Sarginson v Civil Aviation Authority, above n 41.43 Sentencing Act, s 4(1) definition of "victim", para (a)(iv).results in an award for all members of a family which is in excess of what, incomparison with other cases, they might have received on a per family basis. I do notaccept that would inevitably result in an injustice. If an offender has the means to pay,this will often be through insurance and, as here, the offender is able to insure againstsuch a liability. The total to be paid in reparation is to be taken into account whenfixing the level of fine. If an offender does not have the financial means to pay whatwould otherwise be appropriate reparation and/or fine, one or both may have to bereduced.[104] I accept, as was submitted for Maritime NZ in the District Court, that, with theCourt being concerned with three families with a variety of family structures and adifferent number of immediate family members, it was not appropriate to orderreparation on a per family basis as suggested by Ocean Fisheries.[105] Accordingly, I do not consider that, in the particular circumstances of this case,the Judge was in error in the approach he took to the assessment of reparation. Neitherthe Sentencing Act nor case law required him to assess reparation first on a per familybasis and to then apportion it between different family members.[106] This does not mean that a per family approach is necessarily going to beinappropriate. As mentioned, it has advantages and is compatible with relevantpurposes and principles of the Sentencing Act. Through adopting that approach, itmay well be easier to achieve consistency in end sentences and in the awards ofreparation. Where a partner, parents and children have been bereaved, it may often bethe best means of recognising the emotional harm that a family has suffered throughthe injury or death of a loved one. Although, it may be necessary and appropriate fora Judge to apportion the total amount for a family between individuals, that will notbe required in all cases. In any event, there could well be benefits for a family inknowing that, however reparation is apportioned between members of that family, thepayment is to recognise the emotional harm they have suffered as a family.Alleged error in not ensuring that total sum to be paid in reparation was comparablewith other awards in similar circumstances for similar offending[107] Ocean Fisheries attached to their submissions a table summarising 39 casesreviewed by counsel involving reparation for emotional harm following a workplacefatality. They said that awards between 2016 and 2020 were consistently between$90,000 and $110,000 per family, as recognised in 2019 by the High Court.44[108] They argued higher awards reflected agreement between the parties, forexample:(a) Department of Labour v Fletcher Concrete and Infrastructure -$125,000;45 and(b) Department of Labour v Fonterra Cooperative Group Ltd - $116,000.46[109] Ocean Fisheries submitted that awards higher than that had been justified onthe basis the Court had identified particular circumstances that had exacerbated theharm that had been suffered.47[110] They submitted the Judge here was in error in not identifying the particularcircumstances that exacerbated the harm done to the victims to justify an award ofreparation higher than for comparable cases. They also submitted he was in error innot identifying cases where the awards were comparable with what he had decided on.[111] Maritime NZ said the awards were consistent with lump sum payments in theorder of $100,000 to $200,000 in respect of each of the deceased crew members.44 Oceana Gold (New Zealand) Ltd v WorkSafe New Zealand [2019] NZHC 365, [2019] 3 NZLR137 at [88].45 Department of Labour v Fletcher Concrete and Infrastructure Ltd DC Nelson CRI-2009-042-001043, 20 August 2009.46 Department of Labour v Fonterra Cooperative Group Ltd DC Hawera CRI-2009-021-958, 20January 2010.47 Citing Department of Labour v Pike River Coal Ltd [2014] DCR 32; WorkSafe New Zealand vAlderson Poultry Transport Ltd, above n 14; New Zealand WorkSafe v Department of Corrections,above n 4.Discussion[112] As I have already discussed, reparation for emotional harm is compensatory,not punitive.[113] Judges in the District Court and High Court have consistently recognised thatcalculating in monetary terms what is appropriate compensation for the death of aloved one is, in reality, an impossible task. All the Court can do is adopt a figurewhich, in a tangible way, recognises the grief and emotional harm that a close familymember has suffered through the bereavement.[114] In Big Tuff Pallets Ltd v Department of Labour, Harrison J said:48Fixing an award for emotional harm is an intuitive exercise; its quantificationdefies finite calculation. The judicial objective is to strike a figure which isjust in all the circumstances, and which in this context compensates for actualharm arising from the offence in the form of anguish, distress and mentalsuffering.[115] In WorkSafe New Zealand v Corboy Earthmovers Ltd, Judge Harland, as shewas, said:49[36] Quantifying emotional loss is a difficult task. Whilst the purpose of it isto compensate, no price can be put on a life lost. As Judge Kiernan noted inSir Edmund Hillary Outdoor Pursuits Centre of New Zealand:"... it would be abhorrent to calculate in dollar terms the cost to each familyof a loved one . . . reparation orders in other fatality cases are really of littleassistance"[37] Despite this, there needs to be a principled approach to the awarding ofreparation for emotional harm. As Ms Harrison identified, there is a widerpublic interest issue in this topic, as premiums for insurance are based onlikely awards. As well, it is a principle under the Sentencing Act that aconsistent approach is desirable when sentencing similar offenders for similaroffending.[116] In R v Burr, Brown J referred to Judge Ronayne's observation in Ministry ofBusiness, Innovation and Employment v Watercare Services Ltd:5048 Big Tuff Pallets Ltd v Department of Labour (2009) 7 NZELR 322 at [19].49 WorkSafe New Zealand v Corboy Earthmovers Ltd [2016] NZDC 21982 (footnotes omitted).50 R v Burr [2015] NZHC 2675, citing Ministry of Business Innovation & Employment v WatercareServices Ltd DC CRI-2011-004-21851, 20 September 2013, at [66]. fixing amounts of reparation is, in no way, an attempt by the Court to placea monetary value on a tragically lost life ... That is an impossible task. Rather,it is the best that a Court can do within a statutory framework to recognise lossand emotional and physical harm by means of a monetary payment which mayor may not ease the burden on those affected.[117] In Sargeant v Police, Hammond J discussed reparation for emotional harmunder the Criminal Justice Act.51 He observed that the quantification of loss foremotional harm is "inherently intractable" and:Empirically, what tends to happen in common law systems, whatever thecompensatory or reparative system, is that courts slowly evolve conventional,and of course, arbitrary limits to subject matter that cannot be treated withanything approaching scientific precision.[118] In R v Bishop, Gilbert J observed:52It is obviously not possible to compensate for the emotional harm caused bythe loss of a loved one by paying money. The best the Court can do is to fixan amount that is consistent with the sums awarded in broadly comparablecases to compensate for the anguish, distress and mental suffering caused.[119] In WorkSafe New Zealand v Oropi Quarries Ltd, Judge Mabey QC noted:53[22] There is no tariff judgment for the assessment of emotional haim tovictims of offences, including where death has occurred. Nor could there be.A life cannot be assessed in monetary terms. The pain and suffering of thosewho have lost a loved one is immeasurable. However the Court is obliged tomake an assessment. That assessment is fact specific but some assistance maybe gained from other awards of emotional harm reparation.[120] Because it is impossible to quantify in monetary terms what might beappropriate compensation for the emotional harm caused by a bereavement, inevitably,calculating an appropriate award is somewhat arbitrary.[121] That arbitrariness is increased where the emphasis in the calculation process ison comparison with awards in other cases, rather than the individual circumstances ofthe victim. However, Parliament has already provided for emotional harm in a waythat is arbitrary to a certain extent.51 Sargeant v Police (1997) 15 CRNZ 454.52 R v Bishop [2016] NZHC 494 at [13].53 WorkSafe New Zealand v Oropi Quarries Ltd [2016] NZDC 10755, [2017] DCR 97.[122] Section 32(2) says a court must not impose a sentence of reparation in respectof emotional harm unless the person who suffered the emotional harm comes withinthe definition of victim in the Sentencing Act. Where, as a result of an offence a personhas died, to be a victim, a person must be a member of the immediate family of theperson who died. Excluded from that definition could be a fiancé or very close friendor colleague who was not a spouse or partner or otherwise a member of the deceased'sfamily, whanau or other culturally recognised family group.[123] In the absence of a statutory cap or statutory formula54 for the allocation ofreparation for emotional harm for close family members, Judges have to rely heavilyon awards that have been made in other cases to arrive at an appropriate reparationaward for the particular case they have been concerned with. So, consistency with therange of awards commonly ordered has been an important consideration in fixingreparation, even when Judges have said that each case must be considered on its ownfacts.[124] In a number of the cases, Judges have recognised what they have been told byvictims of how the victims have been affected by that bereavement. On a number ofoccasions, Judges have demonstrated how victims had been hurt by stating that awardsin other cases can be of little relevance, that the particular case in front of them mustbe dealt with on its own facts and that there is no tariff for reparation for suchemotional harm. The cases however demonstrate that, even when that is said, theparties base their submissions as to what might be appropriate on awards in othercases. Invariably, Judges refer to the range of awards in other cases or to the range ofawards referred to in submissions.55[125] Because reparation for emotional harm from a bereavement cannot becalculated on an objective basis, the obtaining of a reparation report, provided for in s33 of the Sentencing Act, to assist in fixing an appropriate award for emotional harmis unlikely to be of assistance to the victims or the sentencing Judge.54 As there is for compensation under the Accident Compensation Legislation. See discussion inSarginson v Civil Aviation Authority, above n 41, at paras [155]−[161].55 See Schedule A.[126] Section 17 of the Victims' Rights Act 2002 obliges the prosecution to take allreasonable steps to gather information as to the emotional harm suffered by victimsthrough, and by means of, the offence. But, victims should not necessarily have todetail all the ways they have been emotionally harmed by a bereavement as if theaward that might be made will be determined by their descriptions as to the harm theyhave suffered, especially so if they do not want to do so.[127] The detailing of that harm can be an arduous process for the victims. Thesentencing process may also provide little further relief to the victims where a Judgehas detailed the emotional harm they have suffered but then has to say that nomonetary award can compensate for the death of a loved one and that such a losscannot be calculated in monetary terms.[128] Judges will, in whatever way they see fit, want to recognise what victims havesaid in their victim impact reports but with awards having to come within a rangeestablished by the cases, it may not be necessary for a sentencing Judge to traverse indetail the particular emotional impact an injury or death has had on a victim for whomreparation is to be paid. The way Judges in the High Court have discussed awards ofreparation for emotional harm has been consistent with this.[129] Given the general acceptance that the calculation of a payment in monetaryterms for death caused by a workplace offence is an abhorrent and impossible task, Iconsider there would be benefits in all parties and the Court recognising that the awardis going to be determined largely, if not entirely, by what is commonly awarded fordeaths from workplace offences under the relevant legislation.56[130] I mentioned earlier the benefits that could flow in terms of the principles andpurposes of the Sentencing Act for reparation to be fixed on a per family basis. Thosesame benefits can be obtained through all concerned in the sentencing processrecognising that the payment for reparation will, where there is financial capacity topay it, be determined primarily with regard to the awards for death or injury fromsimilar offending. The benchmark of awards in other comparable cases and the need56 Health and Safety at Work Act.for consistency will often be the most important factor in calculating the amount to beawarded.[131] Ocean Fisheries' challenge as to the amount of the award in this case wasprimarily directed at the total reparation which had to be paid with the approach thatthe Judge took and his not fixing reparation on a per family basis. In their submissions,Maritime NZ did not analyse the award of reparation for individual family membersin other cases to respond to this ground of appeal. They said the challenge wasessentially to the methodology adopted by the Judge.[132] I have however considered whether there was an error in the Judge's approachthrough his awards for individual members of each family being inconsistent with therange of awards for individuals in other cases.Were the awards of reparation for emotional harm to victims on an individualbasis so far beyond the range of what had been awarded in other cases for thereto have been an error in the sentencing on that basis?[133] Ocean Fisheries have claimed that, on a per family basis, the awards werebeyond the range of what had been awarded for families in other cases. I agree,especially if the Court disregards higher awards of reparation for emotional harmwhere the Judge increased the awards because of the more serious culpabilityassociated with the offence, or where the award was based on an agreement negotiatedbetween the parties. I have held however that it was appropriate, in the circumstancesof this case, for reparation to be assessed on an individual basis.[134] Attached as schedule A is an analysis of awards in other cases of workplaceoffences where there has been a death. The analysis includes the 31 cases referred toby Ocean Fisheries in the submissions before me and the 16 cases they had referred toin the District Court, among others.[135] A review of those cases yields the following conclusions:(a) On a per family basis, the range of total awards is $75,000 to $170,000but, in recent years, there have been far more awards between $100,000and $130,000. There has been a clear upwards drift.(b) The range of awards for a spouse has varied greatly, from $15,714 to$100,000. So too has the range of awards for a child, from $7,500 to$125,000.(c) The awards for a parent or sibling have, in general, been less than thosefor a spouse or child. The range of awards for a parent is $5,000 to$44,000, and for a sibling $4,000 to $125,000. The case where $125,000was awarded to a sibling was however a notable outlier.57 If it is omitted,the range for a sibling is $4,000 to $39,000.58[136] On the basis of that analysis, the award in this case of $40,000 for emotionalharm for a surviving partner was within the range for awards in other cases. So wasthe award of $40,000 for each child and $10,000 for each parent.[137] In many of the cases referred to, there was no award for siblings. Nevertheless,siblings come within the definition of victims as referred to in s 4(1) of the SentencingAct. The global award of $100,000 for a sister and parents in WorkSafe New Zealandv N E Parkes & Sons Ltd was consistent with an award of approximately $33,000 forthe sister.59 In WorkSafe New Zealand v Altranz, reparation of $35,000 was to be paidto a sister.60 The award of $10,000 here for each sibling who provided victim impactstatements was therefore also within the range of what had been awarded in othercases. It was also appropriately relative to the awards for parents.[138] Ocean Fisheries has not established there was an error in the quantum ofawards assessed on an individual basis through those awards being inconsistent withawards in other cases.[139] Furthermore, for a specific award to be adjusted on appeal, the Court wouldhave to be satisfied that, with the amounts awarded, the overall sentence wasmanifestly excessive. Here, the Judge had reduced the fine payable by Ocean Fisheries57 R v New Zealand School of Outdoor Studies Ltd, above n 31. That award reflected Malaysianculture and the responsibilities the victim (and sibling) had undertaken to family.58 Although this judgment provides information as to the size of awards in other cases it is not aguideline judgment. It was not contested as such. There may well be merit in a decision providingsuch guidelines as the full Court did with the starting point of fines in Hanham & Philp.59 WorkSafe New Zealand v N E Parkes & Sons Ltd [2020] NZDC 25449.60 WorkSafe New Zealand v Altranz (2008) Ltd [2018] NZDC 26548.on account of the payments Ocean Fisheries had to make by way of reparation and anamount Ocean Fisheries had paid the victims soon after the deaths.[140] Where the amount of the fine has been reduced on account of the total sum tobe paid for reparation and there is to be no adjustment to the fine, it will be difficultfor a defendant to persuade a court on appeal that there should be an adjustment to arelatedly modest sum which a defendant company has already been ordered to pay foremotional harm. Judges, at first instance, have often remarked that the courts face aninvidious task in having to quantify in financial terms the emotional harm sufferedthrough bereavement. It would be even more invidious for a court, on appeal, to berequired to assess whether a relatively modest award at first instance should, forinstance, be reduced from say $40,000 to $30,000, or $10,000 to $5,000.Was the Judge in error in failing to reduce the level of emotional harm paymentsto reflect $60,000 already paid by Ocean Fisheries to the families?[141] As mentioned earlier, the Judge acknowledged the commendable way in whichMr Stark, the Ocean Fisheries director, and his wife had tangibly recognised the waythe families had been affected, with payments of $20,000 to each family in the weeksafter the sinking, and communication. Through ensuring Ocean Fisheries wasadequately insured and through an undertaking Mr Stark had provided, the owners ofOcean Fisheries ensured that the reparation for each family would not be reduced onaccount of any financial difficulty Ocean Fisheries might have faced in payingwhatever was required. Mr Eaton said the way in which Mr Stark had supported thefamilies through the long running proceedings was demonstrated by the fact that, on anumber of occasions, he had been seated in Court alongside representatives from thosefamilies who were there as victims.[142] Ocean Fisheries had made sure it was insured so it could pay the requiredamount of reparation. The information given to the Court suggests the sole directorof the company would want reparation to be fixed on the most generous basis. One ofthe ironies of the present situation is that, through the right of subrogation, thecompany must allow the insurer to argue under its name that reparation should havebeen fixed on a significantly lesser basis than had actually happened.[143] Ocean Fisheries pointed out that, in a number of cases, payments that havebeen made to victims have been brought into account or offset against the total theJudge decided was otherwise appropriate for emotional harm reparation.61[144] Ocean Fisheries submitted the fixing of reparation and the fine were twodistinct steps. The amount already paid to each family should have been taken intoaccount when fixing reparation. They submit it was taken into account only whenfixing the fine.[145] Maritime NZ accept that, in not deducting the amounts already paid, the Judge"did not engage in the normal exercise of adjustment". They nevertheless submit thisdoes not mean there was an error or, if there was, the reparation order actually madewas manifestly excessive. They submit that, for the Judge to be required to bring theminto account, Ocean Fisheries would have to show that the payments made were onaccount of mitigating the emotional harm suffered, rather than to compensate them forthe loss of financial support that would otherwise have been available to each familyfrom the deceased.[146] I accept the submissions made for Maritime NZ.[147] The Judge referred to the fact that Mr Stark's family gave each family $5,000cash in case joint bank accounts had been frozen. Those payments would thus likelyhave been made to compensate each family for their not having continuing financialsupport available from each of the deceased. Each family was given a further $15,000in the two weeks after the accident. Again, payments made immediately in theaftermath of the sinking of the boat were more likely to have been made to provide thefamilies with continuing financial assistance rather than as part recognition of theanguish, distress and mental suffering the victims had suffered, the purpose of anaward of reparation for emotional harm.61 WorkSafe New Zealand v CentrePort Ltd [2019] NZDC 12020, [2020] DCR 118; WorkSafe NewZealand v Crafar Crouch Construction (Picton) Ltd [2019] NZDC 8209, [2020] DCR 64;WorkSafe New Zealand v Stevens and Stevens Ltd [2018] NZDC 19098; Work Safe NZ v HamiltonCity Council [2016] NZDC 18590; Maritime New Zealand v Talley's Group Ltd [2016] NZDC10580; WorkSafe New Zealand v Kone Elevators Pty Ltd [2015] NZDC 22544[148] When a victim has received a payment following the death of a family member,the reason and basis for that payment is material in deciding whether and how it shouldbe brought into account against an award of reparation, whether it be for consequentialfinancial loss or emotional harm.62[149] The payments made could have been offset against the amounts which wereotherwise appropriate for consequential loss. They were not. However, they weretaken into account when the Judge provided for a discount of 15 per cent against astarting point fine of $80,000 on account of reparation paid and the tangible way inwhich Mr Stark and his wife had demonstrated their remorse for what had happened.[150] With those payments having been brought into account, albeit not on a dollarfor dollar basis, in leading to a discount of the fine and there being no appeal againstthe level of fine, I do not consider that, with the $60,000 not being brought into accountagainst the award of reparation for emotional harm, the overall penalty imposed in thiscase was manifestly excessive.Was the Judge in error in requiring Ocean Fisheries to make payments foremotional harm of $5,000 to each of three siblings when there was no evidence orvictim impact statement from them as to the emotional harm they had suffered?[151] In his sentencing remarks, the Judge said:[20] I have read the 13 victim impact statements which have beencompleted by family members. The experiences they share and the feelingsthey express are those which, in my experience, naturally flow from the lossthey have suffered. The common themes are of shock and distress at the newsof the death followed by long lasting sorrow and grief at the loss of animportant member of their family circle. Other experiences described includemental health problems, stress on family relationships, fear of the sea and lossof the chance for children who are young or yet to be born to know theirgrandfather.[21] I infer that the sudden and unexpected loss of a family member willhave caused emotional harm to the other four surviving victims who have notcompleted victim impact statements. [152] The Judge then discussed the circumstances of six victims who had notprovided victim impact statements. He said the effect of their father's death on two62 Sarginson v Civil Aviation Authority, above n 41, at [200]−[202].children had been described in their mother's victim impact statement. He said "thiswas sufficient for them to be considered in the same category as other children of thedeceased".63[153] The effect on a father of one of the deceased had been described in his wife'svictim impact statement. The Judge regarded this as sufficient for him to be treated inthe same way as other parents.[154] Three other victims were siblings of one or another of the deceased. The Judgeconsidered it appropriate to require reparation to be paid for those siblings but at halfthe amount ordered for those siblings who had provided victim impact reports. Hesaid such an approach was justified given he had "no information about the effect onany of them of their brother's death".[155] The Judge referred to the view expressed by the Court of Appeal in R vDonaldson that reparation was to be approached "in a broad common-sense way",64and the principle of sentencing in s 8(e) of the Sentencing Act that Judges must takeinto account the general desirability of consistency with appropriate sentencing levelsand other means of dealing with offenders in respect of similar offenders committingsimilar offences in similar circumstances. He noted that victims who had providedvictim impact statements had described the emotional harm they had suffered indifferent ways, that there were particular aspects of loss unique to each of them butthe differences were not so great as to lead the Judge to a conclusion that differingawards should be made to victims with similar relationships to one of the deceased.[156] Ocean Fisheries submit there should always have to be some evidential basisfor finding there was emotional harm requiring a payment of reparation. They saidthe High Court in Big Tuff Pallets Ltd v Department of Labour had held there had tobe some evidential basis for a determination of emotional harm.65 Here, the Judge hadexpressly stated "I have no information about the effect on any of them [the threesiblings] of their brother's death".6663 Maritime New Zealand v Ocean Fisheries Limited, above n 2, at [21](a).64 R v Donaldson, above n 27.65 Big Tuff Pallets Ltd v Department of Labour, above n 48.66 Maritime New Zealand v Ocean Fisheries Limited, above n 2, at [21](c).[157] Maritime NZ submit, to the extent there is a conflict between the High Courtjudgments in Big Tuff Pallets Ltd and Nino's Ltd v Maritime New Zealand, theapproach in Nino's Ltd should be preferred. They also submit, in the circumstances ofthis case, there was an evidential basis for the Judge to infer emotional harm to thethree siblings through the victim impact statements that were available from otherfamily members.[158] In Big Tuff Pallets Ltd, a District Court Judge had ordered reparation of$40,000 to be paid where the victim had suffered serious injury to four fingers of hisright hand, parts of three of those fingers were later amputated. On appeal, it wasaccepted there was an error in the sentencing in that the Judge had not given reasonsfor the amount of reparation. He had not explained how or why the figure of $40,000was reached. He did not apportion the sum between emotional harm and financialloss.[159] Harrison J in the High Court agreed that, in the circumstances of an earlier caseof Smith, the High Court had been correct to remit the case back to the District Courtto obtain information about the family circumstances of a child for whom reparationwas to be paid. He declined to remit the case before him back to the District Court toobtain further information. Harrison J decided he could fix an appropriate award.Although he noted a victim impact report had been prepared some six months after theaccident and it provided some information about the consequences for the victim ofthe workplace injuries, he said the fixing of reparation was an intuitive exercise, thatthe judicial objective had to be to strike a figure which is "just in all the circumstances"and which compensates for "actual harm arising from the offence in the form ofanguish, distress and mental suffering".67 He considered the nature of the injury to berelevant. He noted that the loss of three fingers and much of the use of a dominanthand must have caused the victim emotional pain, suffering and distress. He notedthere was no evidence that had led to any extreme or psychiatric disability. Taking "abroad view of the case", he considered a figure of $20,000 was appropriaterecompense for the emotional harm, noting it was an award which satisfied thestatutory requirement of consistency in sentencing. He thus made an award for67 Big Tuff Pallets Ltd v Department of Labour, above n 48, at [19].reparation for emotional harm without relying on specific information provided to himin the victim impact statement.[160] In Nino's Ltd, a fishing boat sank. The three crew members were forced toabandon the vessel some five kilometres off shore. They were rescued after what theJudge described as "near death experiences". Two of the crew members gave victimimpact statements. Both were diagnosed with post traumatic stress disorder (PTSD).In those statements they described the emotional and psychological effects of theirexperience. The third member did not provide a victim impact statement. The Judgerequired $25,000 to be paid to each of two crew members who had provided victimimpact statements and $10,000 for the other crew member given the lack of anyspecific victim impact information. Thomas J said:68There is no indication that Parliament intended judges to undertake some sortof critical analysis of the harm claimed to have been suffered by a victim. Thisis further emphasised by the purposes of sentencing, which require the Courtto provide for the interests of the victim and reparation for harm done, and theprinciples of sentencing which require the Court to take into account anyinformation concerning the effect of the offending on the victim.[161] Thomas J held the Judge was entitled to conclude that the third victim wouldhave suffered a similar experience to the two crew members who had provided victimimpact statements but also that she was entitled to differentiate between them becauseshe did not have the same quality of information and, in particular, did not knowwhether the third victim also suffered from PTSD.[162] The Judge here ordered reparation to be paid to a brother of one deceasedwithout the benefit of a victim statement for that brother. That deceased's partnerprovided a victim impact statement in which she referred to the way she and thecouple's children had been affected by his death. In doing so, she said:I don't just think in terms of my loss, but I think about everyone who lost theirlives that day and how much their families must miss them. I think of [thedeceased's] parents, his brother and his sister [163] The mother of this deceased provided information as to how this brother andsister had been affected by that deceased's death.68 Nino's Ltd v Maritime New Zealand, above n 23, at [44], footnotes omitted.[164] The mother of another deceased provided information as to how her family hadbeen affected by her son's death.[165] In his victim impact statement, the son of one of the deceased described theimpact his father's death had had on him but expressed gratitude for the fact he hadbeen able to write a victim impact statement – as hard and emotional as it had been todo so, but concluded with the statement:During sentencing and when considering any acknowledgement and/orreparation for the family members, I would like you to please consider thisvictim impact statement and treat my brother and I as fairly and equally as allof the other family members of the FV Jubilee.[166] The 20 year old son of one of the deceased described in his victim impactstatement the way he had been affected by his father's death but in conclusion said forthe sentencing Judge "I hope you all realise how much of an impact this has had notjust on myself but everyone in the families involved".[167] The victim impact statements of others in the family of each of the deceasedprovided sufficient information to show that each of these siblings was not estrangedfrom the deceased. Those who did provide victim impact statements identified that allthose in each deceased's family had been affected emotionally by the deaths that hadoccurred. The awards made for siblings who had provided victim impact statementswere modest. There have been cases where siblings were awarded far more than$10,000.[168] The Judge did say he had no information as to how the three siblings referredto had been emotionally affected by the death of their brother. Having read the victimimpact statements provided by others in their families, I consider this was a mis-statement. In all the circumstances of this case, I consider the Judge had sufficientinformation to infer that they would have been emotionally harmed by the death oftheir brother to an extent that justified an award to each of them of the $5,000 theJudge arrived at, especially so taking into account that those who had provided reportswere to each receive $10,000. To not have awarded these siblings reparation as he didwould, in the circumstances of this case, have failed to recognise them as victims andwould not have achieved consistency amongst victims in a way that the SentencingAct says is relevant.Was there an error in the Judge not ordering reparation to be paid for a sister ofone of the deceased?[169] The Judge required reparation in differing amounts to be paid to siblings of thedeceased but did not include the sister of one of them from the list of siblings to receivecompensation. In a minute after his judgment, he said this was because of hisunderstanding she did not want to receive compensation. Subsequent to the judgment,Maritime NZ confirmed with the sister that the Judge's understanding was not correctand advised the Court of this on 16 October 2020. On 9 February 2021, the Judgeissued a final judgment accepting he had made an error but holding that he lackedjurisdiction to correct it. He said, had he not made an incorrect assumption, he wouldhave awarded this sister reparation of $5,000.[170] I have reviewed Maritime NZ's submissions. It was not clear Maritime NZwas seeking reparation for this sibling. They were in error in not referring to her as asister of one of the deceased's family and as a victim entitled to reparation in her ownright. In her victim impact report, the mother of this sister had provided specificinformation as to how the sister had been emotionally affected by her brother's deathand the reason she had not provided her victim impact statement.[171] I have upheld the awards of $5,000 reparation for siblings who had notprovided victim impact statements. With those awards having been upheld, it isnecessary to correct the error which was made in respect of the sibling of one of thedeceased. The cross-appeal of Maritime NZ as to this is allowed. The order forreparation made in the District Court is varied so as to require Ocean Fisheries to pay$5,000 in emotional harm reparation to this sister of one of the deceased.Result[172] The appeal of Ocean Fisheries is dismissed. The orders for the payment ofemotional harm reparation as made in the District Court are upheld, except thatMaritime NZ's cross-appeal is allowed. Ocean Fisheries are to pay reparation of$5,000 for emotional harm to the sibling69 of one of the deceased.[173] Maritime NZ are entitled to costs on this appeal. If no agreement is reachedover costs, Maritime NZ is to file a memorandum within four weeks. Ocean Fisheriesis to file a memorandum in reply within three weeks of the filing of the memorandumfor Maritime NZ. Maritime NZ may file a reply within two weeks of receiving thememorandum from Ocean Fisheries. The memoranda are to be no longer than fivepages. I will determine costs on the papers.Solicitors:J Eaton QC, Barrister, ChristchurchLukeCunninghamClere, Wellington.69 As named by the respondent.Schedule ACase Name Methodology Apportionment Culpabilityjustification?Agreement?Maritime NewZealand v OceanFisheries Limited[2020] NZDC 18702Separate paymentfor each categoryof familymember: Partnersand children,parents, siblingswho providedVIS and othersiblings.$40,000 for eachpartner and child;$10,000 for eachparent;$10,000 for eachsibling whoprovided VIS; and$5000 for othersiblings.No NoWorkSafe NewZealand v CarHaulaways Ltd[2021] NZDC 3119Separate paymentfor each child.$30,000 for eachof three children.Total award:$90,000.No NoWorkSafe NewZealand v VehicleInspection NewZealand Ltd[2021] NZDC 3036Global award tofamily ofdeceased.Global award of$130,000.No, but notethe deceasedwas a customernot anemployee.NoWorkSafe NewZealand v CentreportLtd[2019] NZDC 12020,[2020] DCR 118Separate paymentfor spouse andglobal paymentfor children(thoughcommented $xeach).$70,000 forspouse; and$20,000 for eachof five children.Total award:$170,000 (less$105,000 alreadypaid).No No.Prosecutionsought$100,000 forspouse and$25,000 foreach child.Defencesubmissionsaccepted.WorkSafe NewZealand v Guru NZLtd [2020] NZDC2955Agreement onamount and howit was to beapportioned.$40,000 tospouse;$30,000 to spousefor children;$15,000 each totwo otherchildren; and$10,000 for theremaining family.Total award:$110,000.No Yes. Agreedamount andapportionment.WorkSafe NewZealand v HigginsContractors Ltd[2020] NZDC 17036Global award toeach threefamilies.$130,000 to eachfamily.No Yes. Agreed$130,000 tothe family ofeach victim.WorkSafe NewZealand v Ports ofAuckland Ltd[2020] NZDC 25308Global awardassessed and thenapportioned.$80,000 to youngson; $20,000 tounclear familyrelationship; and$30,000 to otherfamily members.Total award:$130,000.No NoWorkSafe NewZealand v N E Parkes& Sons Ltd[2020] NZDC 25449Global award of$100,000 forimmediate family.Global award forsister and parents.No, but didundertakethoroughanalysis ofcausationrequirement.NoWorkSafe NewZealand v KiwiLumber (Masterton)Ltd[2020] NZDC 19117Separatepayments forseparate familymembers/groupsand then totalrecorded.$75,000 tohusband and twostepchildren;$10,000 each totwo parents andtwo sons (one ofwhom deceased);and $3000 tosister.Total award:$118,000.No NoWorkSafe NewZealand v CrafarCrouch Construction(Picton) Ltd[2019] NZDC 8209,[2020] DCR 64Separate paymentfor partner andmother.$100,000 forpartner (less$26,000 alreadypaid); and$15,000 formother.Total award:$115,000.No NoWorkSafe NewZealand v AldersonPoultry Transport Ltd[2019] NZDC 25090Global award tofamily ofdeceased.Total award:$130,000.No, butcomment thatpartner waspresent whenvictim was runover by forkliftand died fromcrush injuries.No, thoughboth Tegel andAldersonsubmitted$120,000reparationshould beawarded.WorkSafe NewZealand v RitchiesTransport HoldingsLtd[2019] NZDC 18495Global award tofamily of each ofthree deceased.$100,000 tofamily of each ofthree deceased.Ritchies triedto havereparationreduced onbasis of lowculpability. At[46], the Judgeacceptedculpability canin somecircumstancesbe a factor indeterminingreparation(cited a caseonapportioningreparationbetweenmultipledefendants).But noculpabilityadjustmentmade here.NoOceana Gold (NewZealand) Ltd vWorkSafe NewZealand[2019] NZHC 365,[2019] 3 NZLR 137Hypotheticaldiscussion ofappropriatereparation figure.Comment that anaward of between$80,000 and$100,000 wouldhave beenappropriate. Nodiscussion ofapportionment.No $200,000 paidby defendantvoluntarilyalongside$450,000 fromemployers'insurer (alsoforconsequentialloss). Morethan thereparationJudge wouldhave ordered.Director of CivilAviation v Sarginson[2019] NZDC 21779Appropriate sumdetermined thenapportioned.$80,000 tospouse;$20,000 to sonTotal award:$100,000.No NoWorkSafe NewZealand vHomegrown Juice CoLtd[2019] NZDC 16605Judge observedprincipally onevictim andassessed anappropriateaward.$90,000 forhusband.No NoWorkSafe NewZealand v PegasusEngineering Ltd[2019] NZDC 7162,[2020] DCR 197Separate awardfor each of wifeand daughter.$80,000 for wifeand $20,000 fordaughter. Totalaward: $100,000.No NoWorkSafe NZ vSunday HiveCompany Ltd[2018] NZDC 20796Sum awarded fordefendants threechildren being hisimmediate family.Comment: "inparticular hiseldest child".$33,333 for eachof three children.Total award:$100,000 held ontrust.No Defendant didnot seem tocontestreparationaward.WorkSafe NewZealand v Stevensand Stevens Ltd[2018] NZDC 19098Sum awarded todaughter (whoprovided VIS).$100,000 on trustfor daughter (less$25,000 paid byZespri, $14,778incurred/paid bydefendant).Total award:$100,000.(adjusted to$60,222).No NoWorkSafe NewZealand v TollNetworks (NZ) Ltd[2018] NZDC 11132Global award of$110,000 to bedistributedequally amongthe familymembers.Five children(adult children,mother and wifementioned). FourVIS read to courtby three sons andwife. $15,714 foreach victim.No Toll offered$110,000reparationprior tosentencingwhich wasrejected byfamily.WorkSafe NewZealand Ltd v McRae[2018] NZDC 22096Global award of$130,000.Not apportionedaside fromcomment that$20,000 reflectsson's presence attime of death.$20,000 ofawardreflectedadditionalharm sufferedby son whowitnesseddeath.NoWorkSafe NewZealand v Altranz(2008) Ltd[2018] NZDC 26548Settled on globalfigure byconsideringapportionment.$35,000 to eachof three victims(parents andsister).Total award:$105,000.No NoWorkSafe NewZealand v MichaelVining ContractingLimited[2018] NZDC 6971,[2019] DCR 682Global award. $80,000apportionedequally betweenfour members offamily.No No distancebetweencounsel onreparation.WorkSafe NewZealand v CodaOperations LtdPartnership[2017] NZDC 18902Global award of$110,000appropriatedequally among sixfamily members.$18,333 for eachof six victims.Their relationshipto deceased wasomitted fromjudgment.No Defendant didnot opposereparation of$110,000.WorkSafe NewZealand v South PortNew Zealand Ltd[2017] NZDC 8050Separate paymentfor wife and eachof two adultdaughters. Awardfor wife includedprovision forseverely disabledson.$110,000 awardedto wife (andseverely disabledson);$7,500 each fortwo adultdaughters.No NoWorkSafe NewZealand vDepartment ofCorrections[2016] NZDC 24865,[2017] DCR 368Global awardapportioned toseparate paymentsfor wife, eachchild and eachparent.$60,000 for wife;$15,000 in trustfor each of 5children; and$10,000 for eachof two parents.Total award:$155,000.Yes.Substantialweight givento particularrelationshipbetweenCorrectionsand deceased.No right ofrefusal toundertake thework theywereundertaking.NoWorkSafe NewZealand Ltd vMetrapanel Ltd[2016] NZDC 25945,[2017] DCR 454.Global award of$90,000.Noapportionment.No NoWorkSafe NewZealand v CorboyEarthmovers Ltd[2016] NZDC 21982Global award of$110,000. But at[42] endorsedapproach ofdealing with eachvictim on discretebasis.Sum notapportioned butreparation was tobe paid to partner.No Distinguishedagreementcases.WorkSafe NewZealand v HamiltonCity Council[2016] NZDC 18590.$100,000 wouldhave beenappropriate, butCouncil hadalready paidreparation of$116,000.Hypothetical sumnot apportioned.No Yes. Voluntarypaymentsmade byCouncilgreater thanreparationsaward.WorkSafe NewZealand v NorthburnLtd[2016] NZDC 11310Global award of$100,000.Noapportionment.No NoWorksafe NewZealand Ltd vCathedral Cove DiveLtd[2016] NZDC 14661,[2017] DCR 121Agreed reparationwould go only toson. But includedan uplift forpresence of otherfamily membersin award for son.$125,000 to son. No NoWorksafe NewZealand v Thompson[2016] NZDC 8350Global award of$100,000.Noapportionment.No NoWorkSafe NewZealand v OropiQuarries Ltd[2016] NZDC 10755,[2017] DCR 97Divided globalaward of$100,000.$66,666 to anundisclosedfamily memberand $33,333 toanotherundisclosedfamily member.Partner, child andmother werementioned.No NoR v Bishop[2016] NZHC 494(SteelconConstruction Ltd)Separate awardfor wife, parentsand child fromprevious union.$90,000 for wife(less $80,000already paid);$10,000 toparents; and$10,000 to 15-year-old childfrom previousunion.Total award:$110,000.No NoMaritime NewZealand v Talley'sGroup Limited[2016] NZDC 10580Award splitevenly amongvictims whoprovided VIS.$100,000 lesspayments alreadymade left $21,000owing to father,mother and sister.Split evenlybetween them.No NoWorkSafe NewZealand v Te AnauBulk HaulageLimited[2016] NZDC 12053Awardapportioned.$85,000 awardapportioned inthis way: $42,500to wife; and$14,166 to eachof three children.No NoWorkSafe NewZealand v EnviroWaste Services Ltd[2016] NZDC 5425Awardapportioned.$85,000 totalawardapportioned$75,000 toparents and$10,000 todaughter fromprevious union.No NoR v New ZealandSchool of OutdoorStudies Ltd & Te Ripo[2016] NZDC 3081Award to brotherto satisfyresponsibilitiesvictim hadundertaken priorto death inrelation to family.ReflectedMalaysianculture.$125,000 tobrother.No NoWorkSafe NewZealand v KoneElevators Pty Ltd[2015] NZDC 22544Global awarddivided betweenfamily members.$90,000distributed in thisway: $20,000 leftin trust foryoungest son bydefendant of ownvolition; $30,000additionally leftto youngest son,for a total of$50,000;$4,000 to each oftwo sisters;$14,000 left toeach of two others(possiblystepsons?); and$4000 to another,possibly motherof stepsons.Relationshipsunclear from thedecision.No Defendant ofown volitionput $20,000 intrust foryoungest son.WorkSafe NewZealand v LyttletonPort Company Ltd[2015] NZDC 1592285% of reparationto immediatefamily, 15% toparents.$75,000apportioned:$11,250 toparents; and$63,750 toimmediate family(wife andchildren).No YesR v Burr[2015] NZHC 2675,(2015) 13 NZELR357Global awardapportioned.Noted obligationto apportion lieswith Court undersection 38Sentencing Act at[41].$75,000apportioned:$30,000 to fatherand mother;$25,000 togirlfriend; and$10,000 tosiblings.No NoWorkSafe NewZealand v IdeaServices Ltd[2015] NZDC 3696,[2015] DCR 210Total awardapportioned.$90,000apportioned:$10,000 to eachof two brothers;$26,000 to father;and$44,000 tomother.Yes. Highdegree ofculpabilityconsidered.Note this caseinvolved deathof a childunder carerather than anemployee.NoMinistry of Business,Innovation andEmployment vTaranaki OutdoorPursuits andEducational CentreTrust DC NewPlymouth CRI-2013-043-000271, 23October 2013Global award tofamily of each ofthree deceased.$75,000 to eachof three families.No NoDepartment ofLabour v Pike RiverCoal Ltd [2014] DCR32Award to familyof each of 29deceased.$110,000 to eachof 29 families.No NoDepartment ofLabour v FonterraCo-operative GroupLtd DC Hawera CRI-2009-021-958,20 January 2010Agreed sum notapportioned byCourt.Agreed sum of$116,000 ordered.No Fonterraoffered$100,000reparation totwo victimsand $16,000 tocoverconsequentialloss. Alsooffered$100,000insurance tovictims' estate.Department ofLabour v FletcherConcrete andInfrastructure LtdDC Nelson CRI-2009-042-001043, 20August 2009Agreed sum notapportioned byCourt.Agreed sum of$125,000 ordered.No YesMaritime NewZealand v BlackSheep Adventures Ltd[2010] DCR 110$60,000 awardapportioned$50,000 toparents (including$10,000 forsecond child); and$10,000 to child.No NoDepartment ofLabour v Sir EdmundHillary OutdoorPursuit Centre ofNew Zealand[2010] DCR 26Award to familynot apportioned.$60,000 to familyof each deceased.Yes. Judgedeterminedculpability was"high" andconsidered itwhen settingreparation.No