The Health and Safety at Work Act 2015 (‘HSWA’) introduced several new sentencing tools for the courts when sentencing duty holders for health and safety offences. After a slow start, we are finally starting to see Judges use these new sentencing options.

What do the New Zealand courts have in their sentencing toolbox?

In Stumpmaster v WorkSafe New Zealand the High Court confirmed a four step approach to sentencing under the HSWA. Step three requires the court to consider whether any ancillary orders under sections 152–158 of the HSWA should be made. These orders include:

• orders for payment of WorkSafe’s costs in investigating the incident and bringing the prosecution
• adverse publicity orders
• orders for restoration
• work health and safety project orders
• court-ordered enforceable undertaking
• injunctions
• training orders.

How have these alternative sentences been used?

The most commonly used order to date is for payment of WorkSafe’s legal costs. WorkSafe is now routinely specifying the amount it has cost to bring a prosecution, and is asking the Court for a contribution towards these costs. In many cases, the contribution sought by WorkSafe is modest, and being ordered by the Court without hesitation. Defendants can now expect to pay $5,000 to $10,000 to WorkSafe on top of the usual fine and reparations to any victim(s).

We have also seen some interesting other ancillary orders:

• Work health and safety project order – Nicks Components & Accessories Limited was ordered to prepare and present a safety presentation to students, produce a safety training film, and provide the film to an educational institute as a training resource.
• Training order – Dong Xing Group Limited was ordered to arrange for some of its employees to complete specified scaffolding training.
• Adverse publicity order – 4 Hippos Farm Limited was ordered to publish details of the offence it had committed (failing to ensure a commercial wood splitter was safe for use), the consequences, and the penalty imposed in newspapers specified by WorkSafe.

In addition, Niagra Sawmilling Limited recently applied (unsuccessfully) for a court-ordered enforceable undertaking. The Court confirmed that there is a sentencing discretion to impose an enforceable undertaking but did not consider it appropriate to do so in the circumstances. The Court suggested this outcome (which can avoid the stigma of a conviction) is only likely to be used when the defendant has no prior health and safety convictions and its culpability is low.

What does this mean if you face sentencing for a health and safety offence?

These orders are likely to be used in addition to fines and reparation orders, not as alternatives to those traditional penalties. However, given the increasing numbers of defendants claiming they can’t afford to pay a big fine, we expect to see more of these orders, as the option to impose them in addition to a modest fine means that the overall penalty can still have appropriate ‘bite’.

If you would like to know more, contact our health and safety lawyers, Grant Nicholson and Olivia Welsh.