Forecasting Fines for Health and Safety in Employment Offences in New Zealand

Abstract

Sentences for employers convicted of offences under NZ health and safety law have been subject to constraints from two main sources (i) legislation; and (ii) guideline judgment cases. Their effect is to effectively split sentencing into three distinct time periods, viz., the period following the introduction of the De Spa Guidelines to the implementation of the Sentencing Act 2002, the second following the joint implementation of the Sentencing Act and the Health and Safety in Employment Amendment Act to the Hanham & Philp Guideline judgment in December 2008, and the third is the post Hanham & Philp Guideline period. This article builds on previous work that analyses the various factors relevant to HSE sentencing, concentrating on the second and third periods. Among other results, this work shows that for period 3, although harm continues to play an important role in explaining sentences of reparation, its previous role in directly explaining levels of fines is replaced by various levels of employer culpability. The Hanham & Philp decisions incorporated harm in determining culpability and District Court judges appear to follow this judgment closely in this respect. The present article illustrates forecasted sentences for periods 2 and 3, and, for the forecasts of period 3 penalties using second period weights, finds that fines would have been frequently lower, often substantially so, than those that occurred, consistent with the Hanham & Philp Guidelines. Reparations, however, are largely unaffected.