New Zealand Police v Freightlines Limited [2016] NZDC 16603

Published 10 January 2017

Failure to ensure safety — duties of employees — Health and Safety in Employment Act 1992, ss 6, 19 and 50 — whether "top up" payment could be awarded — Department of Labour v Hanham and Philp Contractors Limited and others (2008) 6 NZELR 79 (HC) — Worksafe v Halls Direct Ltd [2015] NZDC 6343. Sentencing Act 2002, s 32. Two defendants, a company and employee, were sentenced under the HSE Act for offending involving a truck which crashed as a result of driver fatigue. The three step sentencing approach of "Hanham" was applied to determine each defendant's liability for reparation and a fine in accordance with an overall proportionality and appropriateness assessment. The defendant company was ordered to pay reparation of $30,000 with a fine of $51,000. No "top up" amount was ordered to cover the disparity between ACC payments and the wage that would have otherwise been earned. Such an order would breach the Sentencing Act as it was prior to amendment. Although "top up" orders are now legal, this retrospective order would be to the disadvantage of the offender and so was inappropriate ("Halls"). The defendant employee was ordered to pay a fine of $4,000 as his financial circumstances prohibited a higher amount. Judgment Date: 16 August 2016.