The High Court yesterday released a guideline sentencing decision relating to the Health and Safety at Work Act. The decision, by a Full Court of two Judges, contains a number of significant comments relating to many aspects of the sentencing process.
First, the approach to sentencing under the Act requires four steps:
- assess the amount of reparation;
- fix the fine by reference first to the guideline bands (see below), and then having regard to aggravating and mitigating factors;
- determine whether further orders under sections 152-158 of the Act are required (these include enforceable undertakings, costs orders, adverse publicity orders, restoration orders, injunctions, work health and safety project orders, and training orders); and
- make an overall assessment of the proportionality and appropriateness of the ‘combined packet’ of sanctions imposed by the steps above (including ability to pay).
When fixing the fine, the guideline bands are:
- Low culpability: up to $250,000
- Medium culpability: $250,000 to $600,000
- High culpability: $600,000 to $1,000,000
- Very high culpability: $1,000,000 plus
The Court was deciding appeals against sentence by three defendants convicted of failing to comply with a duty and thereby exposing someone to a risk of death or serious injury or illness (for which the maximum fine is $1.5 million).
The Court also commented that:
- Any increase in fine levels should not lower the size of reparation orders.
- In the sentencing cases so far decided under the Act, the discounts routinely applied to fines for reparations already paid, remorse, previous good record and cooperation have often been applied with insufficient analysis. This distorted the sentencing process by so reducing the starting points for fines that outcomes became too low. The approach to discounts for reparations and good record in particular had been incorrect. The High Court applied a stricter approach than the District Court in the two appeals challenging this aspect of the District Court’s sentencing decisions, giving lesser discounts than that Court had.
- In relation to one of the appeals, financial incapacity had resulted in a reduced fine to be paid over four and a half years. The Court declined to interfere with the District Court’s decision, but did caution about extending liability too far into the future, saying that a ‘higher rate of repayment for a shorter time is generally preferable’.
- In relation to the same appeal, the company’s challenge to the $4,000 costs order in favour of WorkSafe was dismissed. The High Court said WorkSafe’s current approach of focussing only on lawyer litigation costs (and not investigation costs, for example), is modest, and the legislation likely ‘contemplates rather more cost recovery than that’.
The High Court’s analysis largely upheld the approach consistently taken by WorkSafe to the number of bands applicable when setting the fine, although reached different (and lower) dollar figures for the bands themselves. In other areas the Court was broadly aligned to WorkSafe’s approach.
The degree of increase in fines has to some extent been over-stated in the various commentaries about the Act, in the media and elsewhere. Most of the charges laid under the Act have related to the new category of offence (failing to comply with a duty and thereby exposing someone to a risk of death or serious injury or illness). Under the now-repealed Health and Safety in Employment Act 1992, most charges related to the lesser offence of failing to take all practicable steps to comply with a particular duty (exposure to a risk of death or serious injury / illness was not required). This lesser offence, which still exists under the current Act, attracts lower maximum fines.
So, while the maximum fines have increased, in part the higher fines we are actually seeing are down to the new category of offence being utilised by WorkSafe (although it could be said that many of the ‘failing to take all practicable steps’ cases under the previous Act in fact involved a risk of death or serious injury / illness).
This was a long awaited and clear decision, which offers much greater clarity in many areas of the sentencing process under the Act.