Time to look at the UK's sentencing guidelines?
Now that the Stumpmaster decision has clarified the question of sentencing penalty bands under the HSW Act, is it now time for NZ to take a look at the UK's
health & safety sentencing guidelines
, issued in 2016?
Sydney lawyer Alena Titterton, a keynote speaker at Safeguard's LegalSafe conference series in October, said in her presentation that Australian politicians would do better to look at the UK's sentencing guidelines rather than disappear down the rabbit hole of industrial manslaughter (my phrase, not hers).
The key element of the UK's guidelines is that sentencing bands are based on the defendant company's annual turnover. Since their adoption the effect on H&S penalties in the UK has been dramatic. In the 2017-18 year, 45 fines of more than £500,000 were handed down (the highest was £3m). By comparison, in the 2014-15 year only five fines of £500,000 or more were imposed (the highest was £750,000).
In New Zealand, the biggest fines appear to have settled in the $300,000 to $400,000 range, which is not only well short of the maximum available, but also well below the £500,000 mark (equivalent to about NZ$943,000).
What does the Forum think - is there any merit in taking a serious look at the UK's guidelines?
I've always thought that the person/people on top of a major organization have so much money that $300k to $400k is a pittance and wouldn't make much difference to them at all. I would agree that percentage fines would be a better deterrent than a bit of pocket money.
I'm don't believe that extending the charging or conviction options in a prosecution to include industrial manslaughter would significantly change attitudes. I do wonder whether it might also make the job of WorkSafe's Inspectors harder by increasing the amount of pushback they're already experiencing.
I would like to see the range of penalties extended and an automatic inflation adjustment applied so penalties don't become trivial as legislation isn't updated that often.
Having personally experiencing the loss of a child in a workplace incident I feel I'm well positioned to speak here. I agree the need for real penalties should be dramatically increased along with other penalties like barring CEO's and executive from holding management positions for a significant period if there are proved to be negligent. This would bring the safety of our loved ones right into their field of vision. I believe Industrial manslaughter was first introduced in Queensland and I'm a strong supporter of this. I do believe it has already changed the attitudes of senior management. And guess what everyone is still doing business, just a little smarter. This legislation will happen in NZ. It's not a mater of if, it's just a matter of when. If you think the workplace fine was too much, then ask yourself what is the value of a life.
Agreed. The people who let these things happen should not be allowed to continue to run business.
I love the additional point you make about further sanctions needing to be taken against management, e.g. restricting their ability to hold a position of power following conviction. That's a
step that can be taken to affect positive change.
I mostly agree with fines being on a sliding scale according to the company's financial situation (although I am not certain turnover is the correct measure, perhaps profit/loss... I'm not sure).
A percentage based fining system would ensure that punishment is proportionate. Fines for the same/similar offence should inflict the same amount of 'pain' on the guilty PCBU, regardless of their size.
E.g. $300,000 for a big company is a drop in the ocean, but for a very small company, it would put them out of business.
I was furious today, reading through prosecutions, and articles about the Stumpmaster high court decision.
First and foremost, the reparations ordered are generally
, and massively inconsistent. How much is a life (or indeed quality of life) worth? Granted, it's a difficult and complex question, but I don't think any judge has got the answer right so far.
E.g. I just cannot see how these can be considered consistent, or more importantly, a fair representation of the value of a life, or the quality of life lost / harm done.
, fatality, elderly man: reparation $100,000.
, fatality, 18 year old man: reparation $105,000
, fatality, middle aged man (no age but noted he was a grandfather): reparation $223,020.10 (how they decided on that specific amount I have no idea!)
, man of unknown age, serious injuries (fractured femur, forehead contusion, and brain hemorrhage - 79 days of hospital care, 20 weeks off work full time when he returned to light duties): reparation $45,000
, man of unknown age, serious injuries (crushed hands, several finger amputations): reparation $67,000.
Scott Alexander McRae
, man of unknown age, fatality: reparation $130,000.
All Flex Packaging
, man of unknown age, serious injuries (hand crushing and degloving, fractures): reparation $20,000.
, man of unknown age, serious injuries (undefined, requiring hospitalisation): reparation $80,000.
North Island Mussels
, man of unknown age, serious injuries (scarring and removal of an eye): reparation $60,000.
Secondly, as the high court confirmed, significant discounts have been applied when perhaps they shouldn't have, or at least without adequate evidence of the mitigating factors being met to an acceptable degree. I'd have expected handing out a massive discount (often in the hundreds of thousands) would definitely have required robust evidence of significant mitigating factors!
really got my blood boiling.... this company got a fine of $250,000 and were ordered to pay $20,000 reparation after and incident where a worker sustained back injuries, after the freight cage he was working in fell three metres from forklift tines - he could easily have been killed from that height! But the real kicker was when I read this -
"Two similar incidents had occurred at other PBT Transport sites and WorkSafe says PBT Transport should have used these incidents to significantly improve their processes."
Even the basics were not in place: "the freight cage did not comply with industry standards and had not been attached to the forklift correctly."
Sorry, enough ranting. I just cannot help but put myself in the shoes of those victims and their families and feel like some of those reparation amounts are a slap in the face... especially given the high levels of culpability in some cases.
The problem with sentencing offenders is that it is complex and, often, poorly reported as some relevant details are either supressed or not referred to in ways that become public. That means laypeople form impressions of what is "fair" based on incomplete facts. I appreciate (and share) the concern that current punishments do not deter some offenders. I do not, however, support increasing penalties. Some thoughts to consider:
1. Fines and reparations (compensation to victims) are different and serve different purposes. Fines vary depending on the offence in question (in most cases for health and safety offending the maximum is $1.5m) while reparations are unlimited.
2. Reparations often cover two or three distinct things - compensation for "out of pocket" losses incurred (eg damaged property), compensation for future losses (eg loss of future income if unable to return to work), and compensation for emotional harm arising from the injuries suffered.
3. There is no good way to assess the economic value of emotional harm, but Judges have to try. In general, a death currently leads to $100-130k for emotional harm, with other injuries resulting in lesser awards. This is increasing over time, and is probably double what it was 5 years ago.
4. When an offender has limited means, the Judge must prioritise reparations over a fine.
5. When a fine is imposed, the Judge has to pick a starting point between zero and the maximum possible fine, then adjust it to take account of aggravating and mitigating factors. In reality, this usually means the fine gets reduced because most defendants can point to relevant mitigating factors (the most common is pleading guilty, which can result in a discount of up to 25% - some people may find that generous, but the court needs to incentivise people to plead guilty and not waste time running meritless defences, with all the aggravation to victims, witnesses etc this would bring).
6. As with all offenders, the Judge must consider the defendant's ability to pay a fine. Case law is clear that a company should not be put out of business by a fine unless there has been repeat offending or some completely egregious breach.
Larger corporates are already seeing their names plashed across the papers, and fines of $500k being imposed. If this isn't enough to motivate better behaviour, I'm not sure what monetary penalty is. The poster who mentioned bans on directors and officers may have a point about that being an additional motivator, but even then it seems draconian to me and may have perverse consequences with people being unwilling to accept reasonable risk.
Good discussion all
. It's important we keep victims at the centre of this, and remember that the goal is to encourage others not to make the same mistakes.
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