OCEAN FISHERIES LTD v MARITIME NEW ZEALAND [2022] NZCA 164

OCEAN FISHERIES LTD v MARITIME NEW ZEALAND [2022] NZCA 164 [5 May 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA559/2021[2022] NZCA 164BETWEEN OCEAN FISHERIES LIMITEDApplicantAND MARITIME NEW ZEALANDRespondentCourt: Collins, Lang and Mallon JJCounsel: A F Pilditch QC, A P Colgan and A L Fraser for ApplicantD R La Hood, T G Bain and M A Heslip for RespondentJudgment:(On the papers)5 May 2022 at 9.30 amJUDGMENT OF THE COURTThe application for leave to bring a second appeal is declined.____________________________________________________________________REASONS OF THE COURT(Given by Lang J)[1] The applicant, Ocean Fisheries Ltd (Ocean Fisheries), was the owner of thefishing trawler Jubilee. The vessel sank off the Canterbury coast in October 2015. Allthree crew members on board the vessel were drowned.[2] Ocean Fisheries pleaded guilty to a charge laid by the respondent, MaritimeNew Zealand, under ss 18 and 50(1)(a) of the Health and Safety in Employment Act1992 (HSEA). This alleged that Ocean Fisheries had failed to take all reasonable stepsto ensure the safety of the men on board the vessel.[3] In a decision delivered on 16 September 2020 Judge Couch ordered OceanFisheries to pay reparation for emotional harm totalling $505,000 to the parents,siblings, partners and children of the deceased crewmen.1 Ocean Fisheries appealedagainst the sentence of reparation, contending it was manifestly excessive. Nation Jdismissed the appeal in a judgment delivered on 13 August 2021.2 Ocean Fisheriesseeks leave to bring a second appeal against the sentence of reparation.Relevant principles[4] The application falls to be determined under s 253 of the Criminal ProcedureAct 2011. Section 253(3) prohibits leave being granted for a second appeal unless theCourt is satisfied that the proposed appeal involves a matter of general or publicimportance or that a miscarriage of justice may have occurred, or may occur, unlessthe appeal is heard.[5] Ocean Fisheries seeks leave to bring the appeal under the first limb of s 253.It contends the proposed appeal involves a matter of general or public importancerelating to the imposition of a sentence of reparation in the context of charges laidfollowing workplace accidents. It says jurisdiction exists to grant leave because theproposed appeal raises important questions of law that have application beyond thecircumstances of the present case.3Proposed grounds of appeal[6] Ocean Fisheries seeks to raise the following questions in the proposed appeal:(1) Did the High Court err in failing to have regard to the principle ofconsistency in quantifying the level of emotional harm reparation on anindividual victim basis?1 Maritime New Zealand v Ocean Fisheries Ltd [2020] NZDC 18702 [Sentencing notes] at [26].The Judge also ordered Ocean Fisheries Ltd to pay reparation for consequential loss and a fine.Those aspects of the sentence were not challenged on appeal.2 Ocean Fisheries Ltd v Maritime New Zealand [2021] NZHC 2083 [High Court judgment]. TheHigh Court also increased the reparation for emotional harm by $5,000 because the District CourtJudge had incorrectly believed that one sibling did not want reparation: at [171].3 See McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764 at [36].(2) Has this methodology resulted in the imposition of a manifestlyexcessive sentence of reparation?(3) Did the High Court err in finding that any financial compensation paidto the families of the deceased crewmen prior to sentencing needed torelate to emotional harm in order to be taken into account in quantifyingthe amount of reparation to be paid?(4) Did the High Court err in finding the evidential standard for an awardof emotional harm reparation could be satisfied when no victim impactstatement had been filed and/or by reference to generalised commentsin victim impact statements made by persons other than the victim towhom a specific award was made?(5) Did the High Court err in having regard to the insurance status of adefendant in determining the quantum of emotional harm reparation?(6) Did the High Court err in finding that the culpability of a defendant isirrelevant in quantifying a sentence of emotional harm reparation?Preliminary issue[7] We deal first with a preliminary issue. This relates to an argument for MaritimeNew Zealand that this Court should decline leave on the basis that Ocean Fisheriesought to have requested a Full Court of the High Court to hear its appeal.[8] We see no merit in this argument. The fact that Ocean Fisheries did not seek ahearing by a Full Court of the High Court is no barrier to it seeking leave to bring asecond appeal.AnalysisQuestions 1 and 2 — awarding compensation to individual victims rather than familygroups[9] The first two questions relate to the appropriateness of the sentencingmethodology adopted in the District Court and approved in the High Court. Thisinvolved fixing reparation that was payable to individual members of the families ofthe deceased crewmen rather than, in the first instance, to each family unit.[10] Ocean Fisheries contends that earlier sentencing decisions in the District Courtroutinely identified the total amount of reparation to be paid to a victim's family withreference to total awards made in other cases. The total could then be distributed eitherby agreement between members of the family or in such shares to individual familymembers as the court considered appropriate. Nation J observed that Judges in boththe District Court and High Court had in previous cases apportioned a total award ofreparation between various family members in differing amounts.4 However, thepresent case represented the first occasion on which either court had been asked toorder reparation for emotional harm by reference to what the Court consideredappropriate for individual victims rather than by calculating the total that should beawarded to a family unit.[11] Ocean Fisheries contends these observations confirm that the approachadopted in the present case was novel and inconsistent with that taken in earlier cases.It also submits that the new approach resulted in Ocean Fisheries being required topay a manifestly excessive sum by way of reparation because it greatly exceeds theamounts awarded in earlier sentencing decisions. Ocean Fisheries says this approachraises an obvious question of general importance because the approach taken in thiscase is likely to be followed in future cases in both the District Court and High Court.[12] We accept that, in general terms, the approach to be taken in relation to ordersfor reparation made in relation to offending under the HSEA could amount to a matterof general or public importance. However, we do not consider that the methodologyused in the present case sets a precedent that will necessarily affect sentencing4 High Court judgment, above n 2, at [75].outcomes in the future. Rather, it was driven largely by the facts of the case with theoffending involving three primary victims, each of whom was survived by severalpersons who also fell within the definition of victims contained in s 4(1) of theSentencing Act 2002. Furthermore, the families of the deceased crewmen had whatNation J described as 'a complex web of family relationships".5 Importantly here, asthe final step in the process, the District Court Judge asked whether the total penaltyimposed (reparation plus the fine) was proportionate to the circumstances of theoffending and the offender and concluded that it was.6 The High Court was alsosatisfied that the overall sentence was not manifestly excessive.7[13] Sentencing courts in future cases will remain free to adopt a methodology inwhich total reparation is fixed in the first instance on a "per family" basis rather thanthat used in the present case but always subject to the proviso that it does not lead to amanifestly excessive sentence.[14] We also consider that rigid adherence to any particular sentencing approach inthis context is likely to lead to difficulties. Sentencing courts must be free to imposesentences that best meet the circumstances of the case. This is especially the casegiven the fact that an order for reparation requires the quantification of intangibleharm, for which there cannot be a tariff case.8 Furthermore, as Nation J observed,there is nothing under the Sentencing Act or case law which precludes the approachtaken in the present case and requires reparation to be awarded on a "per family"approach.9[15] We acknowledge, however, that the approach taken in the present case may notbe appropriate in all cases. There may, for example, be cases involving numerouspersons who come within the statutory definition of "victim". In such cases theapproach taken in the present case is likely to result in a very large total order forreparation. A sentencing court has the ability to reduce the level of any fine imposedto reflect the level of any reparation that has been ordered. This was the approach5 At [90].6 Sentencing notes, above n 1, at [89].7 High Court judgment, above n 2, at [150].8 WorkSafe New Zealand v Department of Corrections [2016] NZDC 24865, [2017] DCR 368 at[25].9 High Court judgment, above n 2, at [105]–[106].taken in the present case. However, in cases involving a very large number of victimsthis may not be sufficient to prevent the end sentence from being manifestly excessive.[16] We would have granted leave to appeal if we considered the sentencingmethodology used in the present case produced an end sentence that was arguablymanifestly excessive. However, we do not consider that to be the case. Taken together,we consider the fine and order for reparation to be within the available range.Question 3 — earlier payments made to the victims' families[17] This question arises because Mr Stark, the director of Ocean Fisheries, hadcommendably made payments in the sum of $20,000 to each of the families of thedeceased crewmen in the immediate aftermath of the tragedy. In the District Court theJudge had reduced the fine by 15 per cent to reflect the tangible assistance and supportOcean Fisheries had given to the victims' families.10[18] Nation J held that these payments could only have been taken into accountwhen fixing reparation for emotional harm if Ocean Fisheries had made it clear theywere being made to mitigate emotional harm suffered rather than to compensate thefamilies for loss of financial support.11 Ocean Fisheries had not taken this step. Thefact that the Judge had reduced the fine by 15 per cent to reflect the assistance OceanFisheries had provided to the victims' families also persuaded Nation J that the overallpenalty was not rendered manifestly excessive by the fact that the payments had notbeen taken into account in fixing reparation.12[19] Ocean Fisheries contends the failure to bring these payments into accountwhen fixing the level of reparation to be paid is likely to lead to significantconsequences in the future. It suggests that one of these may be to dissuade employersfrom providing tangible support to the families of victims for fear that their generositywill not be taken into account later.10 Sentencing notes, above n 1, at [81].11 High Court judgment, above n 2, at [145]–[146].12 At [150].[20] We see such consequences as being unlikely because we consider employersfaced with a tragedy of this type are likely to be motivated more by concerns about thewellbeing of their employees' families than about concern for their own financialposition. However, we do not consider the issue to be of any public or generalimportance in any event. It flows from the facts and circumstances of the present case.Question 4 — orders made in favour of victims who did not provide victim impactstatements[21] This issue arises because some of the victims who received an award ofreparation did not provide victim impact statements when Ocean Fisheries wassentenced. The Judge awarded them one-half of the amount awarded to persons whohad provided victim impact statements.13 Nation J considered the victim impactstatements provided by other members of the family contained sufficient informationto enable the judge to infer that those who had not provided statements would alsohave been emotionally harmed by the death of a close family member.14 He thereforeupheld the awards the Judge had made.[22] We consider this issue arises from the factual circumstances of the present caseand does not give rise to any question of public or general importance. The weight tobe given to a victim impact statement (or the absence thereof) when awardingreparation will be case and fact specific. Guidance from this Court is not required.Question 5 — the relevance of insurance[23] Ocean Fisheries had taken out an insurance policy that enabled it to meet thesentence of reparation. It contends the High Court Judge erred in having regard to thisfact when determining the amount to be paid by way of reparation.[24] This issue arises because Nation J observed:15[103] I do not consider that, when the particular circumstances of a caserequire it, an award calculated on an individual basis will be unfair or an errorsimply because it results in an award for all members of a family which is inexcess of what, in comparison with other cases, they might have received on13 Sentencing notes, above n 1, at [26].14 High Court judgment, above n 2, at [168].15 High Court judgment, above n 2.a per family basis. I do not accept 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 against such a liability. The total to bepaid in reparation is to be taken into account when fixing the level of fine. Ifan offender does not have the financial means to pay what would otherwise beappropriate reparation and/or fine, one or both may have to be reduced.(Emphasis added)[25] We see nothing controversial with this observation. The amount to be paid byway of reparation will generally be limited by the extent to which the offender has themeans to meet the sentence imposed. Where the offender does not have the means topay both a fine and reparation, one or both may need to be reduced. Insurance providesone means by which an offender may be able to meet a sentence of reparation. It hasno relevance beyond that issue. We therefore do not consider it raises any question ofpublic or general importance.Question 6 — does the level of culpability affect the amount of reparation to be paid?[26] Nation J accepted a submission for Maritime New Zealand that questions ofculpability and causation are not generally relevant when fixing the level of anysentence of reparation for emotional harm.16 The level of compensation to be paid byway of reparation is fixed in recognition of the harm caused. The culpability of theoffender may, however, be relevant when apportioning the extent to which multipleoffenders should pay reparation to the victims of their offending.17 By way of contrast,the level of the offender's culpability will always be relevant when fixing the level ofany fine to be imposed.18[27] These findings are consistent with a considerable body of authority in the HighCourt,19 and we do not consider they raise any arguable issue of law to the contrary.The rationale flows from the fact that, whereas a fine is punitive in nature, a sentenceof reparation is compensatory. It is intended, wherever possible, to restore the victim's16 At [74].17 At [70].18 At [65].19 Department of Labour v Hanham & Philp Contractors Ltd (2008) 6 NZELR 79 (HC) at [54]–[55]and [80]; and Stumpmaster v Worksafe New Zealand [2018] NZHC 2020, [2018] 3 NZLR 881.position in relation to damage such as emotional harm.20 Resort to refined causationarguments is not to be encouraged.21Result[28] The application for leave to bring a second appeal is declined.Solicitors:McElroys, Auckland for ApplicantCrown Solicitor, Wellington for Respondent20 R v Donaldson CA227/06, 2 October 2006 at [34].21 At [36].