20.12.2022

Leave refused for second appeal in relation to sentence on sinking fatalities

In May, the Court of Appeal refused to grant leave to Ocean Fisheries Limited (Ocean Fisheries) to further appeal the size of an emotional harm reparation sentence. 

Factual Background 

In October 2015 a fishing trawler operated by Ocean Fisheries, the Jubilee, sank off the Canterbury coast with three crew members on board who all drowned. 

The cause of the sinking was unknown, but the summary of facts inferred that there had been gradual water ingress to the fish room of the vessel.  The bodies of the three crew were found in the wheelhouse where they slept and it was inferred that all three crew were asleep at the time that the vessel sank.  Had one of them been awake, the summary of facts assumed they would have noticed the water ingress and been able to alert the others to get to safety.

Maritime New Zealand laid charges against Ocean Fisheries for breaches of the Health and Safety at Work Act 2015, on the basis that Ocean Fisheries failed to take all reasonable, practicable steps to prevent the death of the three crew.  Ocean Fisheries pleaded guilty to the charges. 

District Court Decision – September 2020 

The District Court ordered Ocean Fisheries pay $505,000 to recognise for the emotional harm suffered by the crew members’ families, $230,225.25 for loss of income and a fine of $46,000. 

Ocean Fisheries appealed the decision to the High Court on the basis that the award for the emotional harm was too high. 

High Court Decision – August 2021

Ocean Fisheries argued that the District Court had erred because it assessed emotional harm awards based on individuals rather than on the families for each of the victims (which has been how it has been calculated previously).  The High Court approved of the District Court’s approach.  Due to the different family sizes of each victim, if emotional harm had been awarded in bulk to each family, this could have led to inequity where family members of the largest family were deemed to have suffered less than the family members of the smaller families. 

In this case, the emotional reparation awards were within the general ranges awarded in other cases.  The Court observed many cases have not awarded emotional harm reparation to siblings, but this does not mean it is inappropriate, as siblings fall within the definition of victims under the Sentencing Act.

The High Court also confirmed that even though some of the victims had not provided victim impact statements, this did not mean that they were not entitled to emotional harm reparation.  It was clear on the information in other victim impact statements that the District Court Judge had sufficient information to infer that all victims that had been awarded reparation had in fact suffered emotional harm.

Court of Appeal – May 2022 

Ocean Fisheries sought leave to bring a further appeal.  In order to be successful, Ocean Fisheries had to satisfy the Court that the proposed appeal involved a matter of general or public importance or that a miscarriage of justice may have occurred. 

The Court of Appeal denied the request for leave to further appeal the sentence.

The Court of Appeal accepted that while the approach in relation to the methodology for calculating reparation could amount to a matter of general or public importance, the methodology used in this case was driven by the facts of the case.  The Court also held that rigid adherence to any particular sentencing approach would be unlikely to lead to difficulties and sentencing courts must be free to impose sentences that best meet the circumstances of the case in question. 

Ocean Fisheries alleged the High Court should not have had regard to the fact that insurance that would cover the reparation.  The Court of Appeal did not see any issue with the reference to the existence of insurance, observing that where a defendant does not have the means to pay the fine and reparation, one or both may be reduced, and insurance provides one means by which an offender may be able to meet the sentence.   

Comment

Although often reparation is awarded to a family, this decision has confirmed that in appropriate circumstances, it can also be calculated on an individual basis, particularly if it is going to result in a more equitable outcome.  Whether this is appropriate will turn on the facts of the case in question.  This can make it difficult for those liable for paying reparation awards (whether it be insurers or companies) to calculate what a likely reparation award may be, as the number of victims may not be apparent until the provision of victim impact statements shortly before sentencing.

This case is also an example of how those involved in health and safety prosecutions need to be prepared for things to move slowly.  Fatalities in particular, but any prosecution can sometimes take a long time to reach sentencing (in this case, the District Court sentencing was almost five years after the event).  In the meantime, defendants should continue to support the victims of any workplace accident.

If you have any questions about health and safety, particularly in a maritime context, please get in touch with our Trade and Transport team or your usual contact at Hesketh Henry.

 

Disclaimer:  The information contained in this article is current at the date of publishing and is of a general nature.  It should be used as a guide only and not as a substitute for obtaining legal advice.  Specific legal advice should be sought where required

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Contact the expert team at Hesketh Henry.
Kerry
Media contact - Kerry Browne
Please contact Kerry with any media enquiries and with any questions related to marketing or sponsorships on +64 9 375 8747 or via email.

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