SULLIVAN v R [2023] NZHC 2251

SULLIVAN v R [2023] NZHC 2251 [18 August 2023]IN THE HIGH COURT OF NEW ZEALANDNELSON REGISTRYI TE KŌTI MATUA O AOTEAROAWHAKATŪ ROHECRI-2023-442-9[2023] NZHC 2251BETWEEN WILLIAM MANSFIELD TREVORSULLIVANAppellantAND THE KINGRespondentHearing: 17 August 2023Appearances: M Zintl for AppellantJ M Webber for RespondentJudgment: 18 August 2023JUDGMENT OF GRICE JAppeal against sentenceIntroduction[1] On 21 July 2023, Judge Ruth sentenced the appellant,1 Mr William Sullivan,to nine months' imprisonment for making a false statement.2 The maximum penaltyfor this offence is three years' imprisonment.[2] The offending involved the appellant deliberately misleading WorkSafeinvestigators in their investigation into a workplace incident at a company calledAimex Ltd (Aimex), where the appellant was the health and safety manager.1 R v Sullivan [2023] NZDC 15041 [decision on appeal].2 Crimes Act 1961, s 111.[3] The Judge also granted the appellant leave pursuant to s 80I of the SentencingAct 2002 to apply to have the sentence of imprisonment cancelled and substituted witha sentence of home detention. The appellant submits the Judge erred in doing so, andthe Crown accepts this is the case.[4] The appellant appeals his sentence on the basis it is manifestly excessive. Theappellant submits the Judge erred in imposing a sentence of imprisonment and oughtto have imposed a sentence of community work and supervision. The Crown opposesthe appeal. It says the sentence imposed was within range and available to the Judge.The offending[5] In July 2019, the victim, an employee of Aimex, a marine and industrialengineering company, was cleaning an engine within the confines of a boat hull usinga product known as brake cleaner when he was overcome with fumes from the brakecleaner. He passed out and remained in the boat hull until he was found. The victimsuffered a hypoxic brain injury and continues to suffer the effects of that injury. It issuggested he may continue to do so for the rest of his life.[6] WorkSafe investigated the workplace incident.[7] Five days prior to the incident, another employee, Employee X, had beendirected to carry out the same task in the same boat in the same way as the victim. Hehad also been overcome with fumes from the brake cleaner, but to a lesser extent.Employee X had realised what was happening when he became lightheaded. He hadremoved himself from the boat hull and reported the incident and was told to go home.Before he did so, he completed an incident with the appellant, who was the Health andSafety Officer of the company at the time.[8] The appellant assessed the incident as a "lack of ventilation" and "incorrectproduct for task". He then recorded the "probable consequence" of the incident asbeing "significant". However, nothing was done as a result of the report ofEmployee X and five days later the victim suffered his injury. The appellant assistedin the extraction of the victim from the hull of the vessel. It is suggested, therefore,that he was fully aware of the circumstances of both incidents.[9] WorkSafe became aware of Employee X's incident in the course of itsinvestigation into the victim's incident. The appellant was asked about the earlierincident. He denied knowledge of it having occurred and denied knowledge of anyincident report. The appellant made a number of positive assertions suggesting thatthe incident involving Employee X could not have happened, including that atradesperson would not have been doing that task, and that the employee had gonehome early on the relevant day due to his conduct towards a manager.[10] Due to a lack of corroboration, WorkSafe was not able to clearly establish theprevious incident or establish that Aimex was aware of it due to the creation of anincident report.[11] Aimex subsequently pleaded guilty to charges under the Health and Safety atWork Act 2015 and Health and Safety at Work (Hazardous Substances) Regulations2017. At sentencing, Aimex in its submissions rejected the proposition that a previoussimilar incident had been reported to it in a manner that could reasonably have beenfollowed up on. It submitted that it could not be concluded that Aimex "should have,or reasonably could have, known about the previous alleged incident by the time of[the victim's] incident". It was granted a 10 per cent discount by the Judge.[12] In sentencing Aimex, the Judge placed Aimex in the medium culpabilitycategory, towards the higher end.3 In determining an appropriate fine, the Judge notedthere was no real appreciation of the potential for serious harm or even death and thathe was sure if there had been such an appreciation, the cleaning of the engine roomwould not have been undertaken in this way.4 The Judge considered the lack oftraining and effective supervision was probably the result of a lack of appreciation ofthe more senior members within the company of the risk and its potentialconsequences, and had there been that appreciation, he was sure those involved wouldnot have allowed this to happen, because they certainly did not intend it to happen.5The Judge noted it was easy with the benefit of hindsight to judge harshly "becauseno-one has anticipated what happened here and of course that is the problem".63 WorkSafe New Zealand v Aimex Ltd [2021] NZDC 14313 at [37].4 At [25].5 At [30].6 At [31].[13] The actions taken by some Aimex employees, including the appellant's falsestatements to WorkSafe intended to cover up the earlier incident during the WorkSafeinvestigation, were discovered after the sentencing by the newly employed ChiefOperating Officer. The appellant admitted to the Chief Operating Officer that he hadnot told WorkSafe about the matter when interviewed even though he had knowledgeof the incident and the Chief Operating Officer advised WorkSafe of this. The policethen commenced an investigation into the allegation of misleading and withholdinginformation from the WorkSafe investigators.[14] The appellant was interviewed by police and admitted to both having hadknowledge of the earlier incident report as well as having completed sections of thereport himself. He claimed he believed it was not his job to disclose the report toWorkSafe, as he was just an employee and the blame for the matter not being disclosedto WorkSafe lay with the former General Manager, his brother.Decision on appeal[15] In sentencing the appellant, the Judge considered that the appellant haddisregarded his obligations as a health and safety officer, that his dereliction of dutywas "outrageous" and that he had then for some unknown reason continued with thelie.7 The Judge considered the appellant had to be held to account for his seriousdereliction of duty.8[16] The Judge adopted a starting point of 12 months' imprisonment.9 He allowedthe appellant a full credit for guilty plea of 25 per cent, resulting in an end sentence ofnine months' imprisonment.10 No issue is taken on appeal with either the starting pointor the discount for guilty plea (and as such the end calculated sentence).[17] The Judge was of the view that "deterrence, both general and specific, must bethe overriding and overwhelmingly important factors of this sentencing" andconsidered that no other sentence could meet the sentencing requirements other than7 Decision on appeal, above n 1, at [23].8 At [23] and [26].9 At [25].10 At [26].a term of imprisonment.11 The Judge therefore sentenced the appellant to nine months'imprisonment, with leave to apply for home detention once he had served more thanhalf his sentence.12SubmissionsAppellant's submissions[18] The appellant submits the Judge erred in sentencing the appellant on the basisthat he breached his duties as a health and safety officer, that this was an outrageousdereliction of duty and that the appellant was directly responsible for the injuriescaused to the victim. The appellant also submits the Judge erred in failing to take intoaccount the desirability of keeping the appellant in the community pursuant to s 16 ofthe Sentencing Act. The appellant says that in sentencing the appellant, the Judgeerred in focusing solely on the statutory purpose of deterrence to the exclusion of allother sentencing purposes and principles. The appellant says the Judge also erred ingranting the appellant leave to apply for the cancellation of imprisonment insubstitution of home detention on a basis that s 80I does not permit.[19] The appellant submits the appropriate sentence, given the nature of the chargeand the appellant's culpability in respect of that charge, would have been a sentenceof community work and supervision.[20] No suitable home detention address was available at the time of sentencing.No adjournment was sought to enable a report as the Judge, Mr Zintl submitted in hisoral submissions, made it clear in comments to that effect in the Judge's decisiondeclining bail pending appeal. Mr Zintl said an address is available but it has not yetbeen assessed for technical suitability.Respondent's submissions[21] The respondent opposes the appeal. It says the sentence imposed was notmanifestly excessive but rather was within range and available to the Judge. The11 At [27]–[28.12 At [29].Crown submits that some offending requires a sentence of imprisonment, homedetention will not always be imposed even if it is an available option, and a sentenceof community work and supervision would be wholly inadequate to deal with theseriousness of this offending.Approach to appeal[22] An appeal against sentence is an appeal against a discretion and must only beallowed if the Court is satisfied that, for any reason, there was an error in the sentenceimposed and a different sentence should have been imposed.13 The Court must dismissthe appeal in any other case.14[23] In an appeal against sentence, an appellate court will not intervene unless asentence was outside the range available to the sentencing Judge.15 The focus is onthe final sentence and whether that was in the available range, rather than the exactprocess by which it was reached.16 An appellate court must therefore exercise anappropriate degree of restraint and will intervene only where the sentence imposed is"manifestly excessive" on the basis of some material error so that a different sentenceshould be imposed.17[24] Section 251(2) of the Criminal Procedure Act 2011 provides that if the appealis allowed, the appeal court must:18(a) set aside the sentence and impose another sentence (whether more orless severe) that it considers appropriate; or(b) vary the sentence, any part of the sentence, or any condition of thesentence; or13 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].14 Criminal Procedure Act 2011, s 250(3).15 Tutakangahau, above n 13, at [36].16 Ripia v R [2011] NZCA 101 at [15]; and Tutakangahau, above n 13, at [36].17 Kumar v R [2015] NZCA 460 at [81]; and Tutakangahau, above n 13, at [32].18 Criminal Procedure Act, s 251.(c) remit the sentence to the court that imposed it and direct that court totake any action of a kind described in (a) or (b) as specified by theappeal court.[25] In remitting a sentence under s 251(2)(c), the appeal court may give thesentencing court any further directions it considers appropriate about the manner inwhich the specified action is to be taken.AnalysisLeave to apply for home detention[26] I first address the challenge to the Judge granting the appellant leave to applyfor the cancellation of imprisonment in substitution of home detention.[27] The leave provision allowing for an application for home detention under 80Iapplies where the court would have sentenced the offender to a sentence of homedetention but for the fact that at the time of sentencing a suitable address was notavailable. In that case the court must make an order granting leave to apply forsubstitution of a sentence of home detention "if the offender finds a suitable residenceat a later date". It is clear this is not the basis on which the Judge granted leave in thiscase. He commented that no other sentence than home detention would meet theSentencing Act requirements in this case. The Judge erred in granting leave on thisbasis, and the respondent accepts this was an error.Sentence of nine months' imprisonment[28] The appellant challenges the sentence imposed, submitting that the Judge erredin sentencing him on the basis of breaching his duties as a health and safety officer,that this was an outrageous dereliction of duty and that the appellant was directlyresponsible for the injuries the victim suffered. The appellant submits he ought not tohave been sentenced on these bases.[29] The Crown says the appellant's lies may well have protected the appellant frombeing prosecuted personally. The Crown says that as a result of the appellant'sdeliberate lies, which were told with the aim of interfering with the WorkSafeinvestigation, Aimex got away with a significantly reduced fine.[30] The Crown says the appellant's false statements to WorkSafe played animportant part in the ability of Aimex to mislead the Court at its sentencing. Had theJudge sentencing Aimex been aware of the true situation, the Crown submits it isinevitable that Aimex would have been placed into the high culpability category ofoffending at the least. The Crown says the Judge sentencing Aimex was very focusedon the company's lack of awareness of the risk to the victim, which was entirelyincorrect, as the company was in fact well aware of the significant risk to the victim.[31] The Crown accepts not all of the blame lies with the appellant, and that he wasonly one offender, with his brother, who was the managing director, another. Theappellant's brother has been sentenced on one charge of perverting the course of justiceto 20 months' imprisonment. Nevertheless, the Crown says the appellant played animportant part in the creation of a situation which allowed a guilty company to reduceits liability by hundreds of thousands of dollars, through misleading the investigatingagency and the Court.[32] The appellant is correct in saying that he was neither charged with norconvicted of causing the victim's injuries and that at law he was not criminallyresponsible for the victim's injuries. But I do not consider the Judge sentenced theappellant on that basis. Rather, I consider the Judge referred to these in consideringthe gravity of the appellant's offending in this case, and his culpability for theoffending. The Judge did refer to the appellant's obligations in preventing the incidentand noted that the appellant did have "direct responsibility for [the victim's] plight".19However, at no point did the Judge refer to sentencing the appellant on charges of hisdereliction of duty. Indeed, the Judge explicitly stated that he "agree[d] entirely" thatthe actions of the company and the appellant's culpability were "separate issues".20[33] I am satisfied that the Judge sentenced the appellant on the charge on which hewas convicted, that is making a false statement, but took the surrounding19 Decision on appeal, above n 1, at [23].20 At [21].circumstances into account in determining the gravity of the offending and thedefendant's culpability, as he was entitled to do.[34] Turning to the sentence that was imposed itself, the appellant contended for asentence of community work and supervision, but the Judge sentenced the appellantto a sentence of nine months' imprisonment. At no point in the appellant's sentencingdid the Crown concede that a sentence of community work and supervision would besufficient. Indeed, the Crown said, and continues to say, that such a sentence wouldbe wholly inadequate to deal with the seriousness of this offending.[35] I agree. Although the PAC report suggested a sentence of community workand supervision, a sentence of supervision has no appropriate relationship to theoffending here. While there was some suggestion of problems encountered by theappellant as a result of the incident, the offending appears to have been driven by otherfactors requiring a more serious response.[36] A sentence of community work and supervision would fail to recognise theseriousness of the offending in this case. In particular, I consider it would fail to meetthe purposes and principles in sentencing in relation to deterring both the appellantand others from committing such offending in the future. The appellant contends thatthe Judge erred in focusing solely on the statutory purpose of deterrence to theexclusion of all other sentencing purposes and principles.[37] I accept that an assessment that focuses solely on one purpose (such asdeterrence) to the exclusion of all others amounts to an error of law.21 However, I donot consider that is the situation here. The Judge clearly referred, both expressly andimpliedly, to other principles and purposes of sentencing, such as taking into accountthe gravity and seriousness of the offending,22 taking into account the generaldesirability of consistency with other sentences,23 and providing for the interests ofthe victims.24 The Judge referred to deterrence not as the "sole" or "only" factor in21 Fairbrother v R [2013] NZCA 340 at [30]; Manikpersadh v R [18]–[19]; Brittin v Police [2017]NZHC 2410, [2018] 2 NZLR 147; McLean v Police [2018] NZHC 102; Ruru v Police [2018]NZHC 114; and Smith v Police [2020] NZHC 25.22 Sentencing Act, s 8(a) and (b).23 Section 8(e).24 Section 7(1)(c).sentencing the appellant (and did not treat it as such), but rather as the "overriding andoverwhelmingly important" factor.25[38] The Judge concluded that there was no other sentence that could meet theSentencing Act requirements but a term of imprisonment.[39] However, unlike the Judge, I take the view that this is a case where a sentenceof imprisonment was not the least restrictive outcome that was appropriate in thecircumstances.26 Although there is a need in the circumstances to deter such offending,a sentence of home detention would have been sufficient for that purpose here. Homedetention is the second-most stringent and serious type of sentence, afterimprisonment. It is a real alternative to a sentence of imprisonment, and althoughhome detention will not always be imposed, I believe a sentence of home detentionwould have met the applicable purposes and principles of sentencing in this case.[40] In particular, I note that s 16(2) provides that the court must not impose asentence of imprisonment unless it is satisfied that the listed purposes of sentencing,which include holding the offender accountable for the harm done, providing for theinterests of the victim of the offence, and denouncing the conduct in which theoffender was involved, could not be achieved by a sentence other than imprisonment.I consider the Judge erred in finding that only a sentence of imprisonment would meetthose listed purposes. A sentence of home detention was sufficient to do so in this caseand would have been the least restrictive outcome in the circumstances.Outcome[41] The sentence of nine months' imprisonment was in my view manifestlyexcessive. A sentence of home detention was appropriate.[42] I would therefore be minded to allow the appeal and substitute the sentenceimposed for a sentence of home detention. However, the Court does not have beforeit the details of any suitable address at which the appellant could serve an25 Decision on appeal, above n 1, at [27].26 Sentencing Act, s 8(g).electronically monitored sentence of home detention. Therefore, that is not an optionavailable to me.[43] I canvassed with counsel the options in view of the fact that a suitable addresswas not available. As detailed above, s 251 of the Criminal Procedure Act providesan appeal court allowing an appeal with specified options. I am satisfied in this casethat the practical solution is to remit the sentence to the District Court under s 251(2)(c)to set aside the sentence and impose another sentence that it considers appropriate. Imake a further direction under s 251(3) that the District Court is to resentence theappellant after receiving information from counsel as to the possibility of homedetention. This will enable the District Court to sentence the appellant on the basis ofinformation before it in respect of the availability of a suitable address for a sentenceof home detention. I note such a similar direction was made in the Court of Appealdecision R v Harriman.27Conclusion[44] I am satisfied the sentence imposed in this case was manifestly excessive, anda sentence of home detention would have been sufficient to meet the purposes andprinciples of sentencing in this case. Therefore, the appropriate sentence was homedetention, being the least restrictive outcome in the circumstances.[45] However, there is no suitable proposed address before the court for theimposition of a sentence of home detention.[46] I therefore make an order under s 251(2)(c) and (3) of the Criminal ProcedureAct remitting the sentence to the District Court to set aside the sentence and imposeanother sentence that it considers appropriate after receiving information from counselas to the possibility of home detention.____________________Grice JSolicitors:O'Donoghue Webber, Nelson27 R v Harriman [2009] NZCA 156 at [28]–[29].