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Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters



OSH Tracker

Worksafe New Zealand v Lenal Holdings Ltd (DC, 31/03/17)

OSH Tracker

Defendant:
Lenal Holdings Ltd
Ignorant of the law 
The new operator of a public hot pools complex at which a boy aged seven drowned was unaware that his business had obligations under health and safety legislation, nor did he know about industry association guidelines for the operation of aquatic facilities. 
Instead, the only guidance he sought was via a conversation with a larger pool complex a short distance away. 
Lenal Holdings Ltd, wholly owned by Warwick (Rick) Allen, pleaded guilty to breaching s16(2)(b)(i) of the HSE Act and was ordered to pay reparation of $60,000. A fine of $67,500 would also have been imposed had the defendant any realistic means of paying it (Waitakere DC, 31 March 2017). 
The drowning happened at the Palm Springs hot pools at Parakai north-west of Auckland in January 2016. No qualified lifeguard was on duty. The pools were owned by a couple who also ran a nearby motel. Allen was initially contracted for security duties and later helped with renovations at the pool. This role morphed into running the pool while overseeing renovations. In October 2015 his business, Lenal Holdings, formally leased the pool from the owners. His partner had worked for many years as a receptionist for a much larger pool complex nearby. 
Earlier, in 2008, Palm Springs had been served with a prohibition notice requiring it to organise a qualified lifeguard to supervise the pool at all times. Allen was unaware of this and said the previous operators had run the pool with one person present and no lifeguard. 
After the drowning the pool employed two qualified lifeguards part-time to cover the opening hours. However the pool closed in June 2016 due to concerns about the concrete floor slabs surrounding the pool. 
WorkSafe highlighted three key failures: to have ensured a qualified lifeguard was present at the family pool whenever it was in use; to have ensured the “Pool Alone” policy was clearly displayed; and to have reviewed the effectiveness of supervision after a near-miss incident earlier in January 2016. 
Instead of a lifeguard the defendant relied on an adult – usually himself – doing an hourly walk-around. Only one member of staff, who was absent that day, held a current first aid certificate. 
The “pool alone” policy – that children must be closely supervised at all times – was buried in a list of bullet points on poorly placed signs unlikely to be read by customers. “While the message may be the same [as in the guidelines], the medium by which the message was being communicated was not and thus the message itself was not so available to be readily received.” 
Allen had also failed to review procedures following an incident earlier in January 2016 when a child had become separated from his caregivers and was found submerged in the pool by another customer, who pulled him out. The child was unharmed but his rescuer was sufficiently disturbed to make a post on Trip Advisor about the lack of a lifeguard. 
Allen conceded a female customer had raised the incident with him on the day and that she appeared agitated, but said that when he went outside to the pool area all was calm and he could find no one who appeared to know anything about it. 
Summarising, the judge said Allen’s failure to follow the Aquatic Guidelines “marks a significant departure from industry standards” but that his failure was not deliberate or wilfully non-compliant but more “naively ignorant”. 
Industry:
Cultural and Recreational Services
Sub-Industry:
Sport and Recreation
Risk:
Engulfment/drowning
Harm:
Death
Penalty Amount:
$60000.00
Reparation Amount:
$60000.00
Appeared in Safeguard issue 163

Judgment Text

RESERVED JUDGMENT OF JUDGE L TREMEWAN 
Judge L Tremewan
[1]
On 15 January 2016, seven year old Cypress Blue Hurley-Hunapo sadly drowned at the Palm Springs hot pools in Parakai. The pool in which he was swimming was not supervised by a qualified lifeguard. There had been a “near miss” incident involving a child becoming submerged in the same pool earlier that month. 
[2]
The defendant in this case is Lenal Holdings Ltd, the tenant and operator of Palm Springs. The governing director and sole shareholder of the defendant company, Mr Warwick (Rick) Allen, has been present at Court and also at the restorative justice conference held in regard to these proceedings. For all intents and purposes, he is the “face” of the defendant. 
[3]
The defendant appears for sentence having pleaded guilty to one charge of contravening ss 16(2)(b)(i) and 50(1)(a) of the Health and Safety in Employment Act 1992 (the Act), namely: 
“Being a person who controlled a place of work, failed to take all practicable steps to ensure that a hazard arising in the place, namely immersion in water, did not harm Cypress Blue Hurley-Hunapo who was in the place with its consent and who had indirectly paid the person to be there or to undertake an activity there. ”
[4]
The maximum penalty for this offence is a fine not exceeding $250,000. 
[5]
Before proceeding to sentencing, it is right to acknowledge that this case relates to a tragedy. Of course, the Court cannot turn back the hands of time; it can only deal with these legal proceedings in relation to what took place. At the same time, it is to be acknowledged that many have been impacted by what happened that day. 
Purposes and principles of sentencing 
[6]
As this is a sentencing matter, the Court is required to consider the purposes and principles of sentencing which apply to the case, pursuant to sections 7 and 8 of the Sentencing Act 2002. 
[7]
Turning to the relevant purposes, in the Court's assessment, particular reference must be made to the need to hold the offender accountable for harm done to the victim and to the community by the offending, and promote in the offender a sense of responsibility for and an acknowledgement of that harm. There is a need to provide for the interests of the victim and provide reparation for the harm done. There is also a need to denounce the offender's conduct and to deter the offender or others from committing the same kind of offence. 
[8]
As these are health and safety proceedings under s 50 of the Act, the purposes of denunciation, deterrence, and accountability are to be given significant weight in sentencing.1
| X |Footnote: 1
Department of Labour v Hanham & Philp Contractors Ltd (2008) 6 NZELR 79, (2009) NZELC. 93,095 (HC)Has partially negative history or cases citing, but has not been reversed or overruled[Yellow]  at [40]. 
 
[9]
In the Court's assessment, the most relevant sentencing principles in this case are: the gravity of the offending, including the degree of culpability; the seriousness of the type of offence in comparison to other offences; the need to take account of information concerning the effect of the offending on the victims; and the general desirability of consistency in sentencing. The Court must also impose the least restrictive sentence appropriate in the circumstances. 
[10]
It is also to be noted that the Court must take into account the offender's circumstances in the manner set out in s 8(h) of the Sentencing Act and the outcomes of any restorative justice processes that have occurred as set out in s 8(j). 
Approach to Sentencing 
[11]
In sentencing, the Court is required to adopt the three-step approach outlined in the guideline judgment of the full Court of the High Court in Department of Labour v Hanham & Philp Contractors Ltd. That case reviewed the principles established in Department of Labour v De Spa & Co Ltd2 reinforcing the proactive approach required by the Act to promote the prevention of harm to all persons at work, in a place of work, or in the vicinity of a place of work. 
[12]
The first step to be adopted requires the Court to assess and fix the quantum of reparation payable to the victim. This involves consideration of the statutory framework, taking into account any offer of amends and the financial capacity of the offender. 
[13]
The second step involves fixing the amount of the fine. This should follow the methodology established by the Court of Appeal in R v Taueki, namely fixing a starting point on the basis of the culpability for the offending and then adjusting the starting point upwards or downwards for aggravating or mitigating circumstances relating to the offender.3
| X |Footnote: 3
R v Taueki [2005] 3 NZLR 372 (CA)Has partially negative history or cases citing, but has not been reversed or overruled[Yellow] 
The Court in Hanham & Philp Contractors set out the following scale, which establishes starting points in terms of three bands of seriousness:4
| X |Footnote: 4
Hanham & Philp Contractors, above n 1, at [57]. 
 
Low culpability: 
a fine of up to $50,000 
Medium culpability: 
a fine of between $50,000 and $100,000 
High culpability: 
a fine of between $100,000 and $175,000 (but still allowing for even greater fines in an appropriate case). 
[14]
As noted, the starting point is then adjusted for any relevant aggravating and mitigating factors relating to the offender. An adjustment must then be made for the payment of reparation, and consideration given to the financial capacity of the offender in fixing the fine. Tailoring to the individual circumstances of the case is essential, as is the need to avoid undue hardship.5
| X |Footnote: 5
At [60]. 
 
[15]
The third step requires the Court to assess whether the overall burden of reparation and fine is proportionate and appropriate to the circumstances of the offending and the offender. 
[16]
It is noted that reparation and fines serve discrete statutory purposes and both should ordinarily be imposed. However where lack of financial capacity does not permit both the payment of appropriate reparation and a fine, the former is to receive priority pursuant to s 14(2) of the Sentencing Act. 
Step one: Assessing reparation payable to victims 
[17]
As already noted, reparation must be a principal focus of the sentencing. Reparation aims to provide for harm caused to victims as a result of offending, in contrast to the punitive purpose served by imposing a fine. 
[18]
The assessment of reparation in this case must be made taking into account any offer of amends by the offender pursuant to s 32(6) Sentencing Act, and the offender's financial capacity pursuant to s 35. 
Harm caused to, and the interests of, the victims 
[19]
In the court hearing, Cypress Hurley-Hunapo's father Eugene Hunapo read out his victim impact statement and the Court also received a written copy of it. Mr Hunapo was present with some kuia from the whānau, also close whānaunga of Cypress, namely his paternal grandmother and an aunt. The Court has also read a victim impact statement from Cypress' maternal aunt, Dyanne Kerr-Taylor, who was present. Ms Kerr-Taylor provided the Court with a victim impact statement written on behalf of Cypress' mother Tanya Hurley, maternal grandmother, seven brothers and sisters, and two cousins. It is understandably difficult for the whānau to convey the depth of their loss, shock and grief about the events, but these statements do give some insight into this. 
[20]
For Mr Hunapo, what has happened with Cypress has brought back feelings of heart ache, loss and trauma he had previously experienced with the loss of a beloved koro. The family's grieving continues. He spoke of the family being united, however, through their trauma, sharing in their sense of sadness and despair, especially given Cypress' young age. He described Cypress as being irreplaceable, and the loss as senseless, and as if Cypress has been “stolen” from them. 
[21]
Mr Hunapo spoke of being in the process of travelling up to Auckland when he received the shattering news. He was so affected that he had to stop driving and his anguish attracted the attention of members of the public who approached to provide some comfort. Arriving at the hospital was terrifying and made him feel scared and powerless. The utterly heart breaking decision had to then be taken to turn off life-support. Mr Hunapo also spoke of the close relationship he shared with Cypress and the massive hole that has been left in their lives. Cypress was obviously a “character” and is greatly missed. 
[22]
In Ms Kerr-Taylor's victim impact statement, made on behalf of members of the whānau on Cypress' mother's side, including siblings, the victim impact statement spoke about the enormous impact the loss of Cypress has had on them all, especially so soon after the passing of another beloved member of their whānau. The trip to the pools that day was supposed to be a special holiday treat. The particular pools were chosen because they were seen as being safer than the ones across the road which were “usually packed”. The children were excited and looking forward to the outing. She also explained some of the background to the events on that day. 
[23]
Ms Kerr-Taylor explained that there had been a discussion with the children about appropriate behaviour and the need to listen and follow instructions on that day. There was also a reminder about this later during the trip after one of the children had needed to grab one of the others who had “floated off the platform area” of that pool. The children were told not to enter the water without an adult and were aware, she said, of the seriousness of this. 
[24]
It was thought best for Cypress' mother Tanya to take Ocean (aged 4) and Cypress to a smaller pool. Ocean then wanted to go to the bathroom so Tanya took Ocean there along with Cypress. In the end Ocean decided not to go to the bathroom afterall, and while that conversation was taking place, Cypress had asked to see what was for lunch and was allowed to look into the bag with the lunch in it (which was just to the left of where Tanya was standing with Ocean). 
[25]
Ms Kerr-Taylor goes on to state that: 
“From there is where things forever changed. In a split moment of time Cypress must have decided to enter the water alone. He did this behind [his grandmother Anne's] back so she did not see him enter the water, nor did [his mother Tanya]. As we know with kids it only takes a split second and Cypress was one of those kids that would act in a moment. It was in essence the decision of a fearless, active young boy. ”
[26]
Ms Kerr-Taylor spoke of the visions of what then followed haunting them all. They were unable to save him and had to watch strangers attempt to revive him. 
[27]
They have had to try to learn to live with the loss. The absence of Cypress, who was so lively and adventurous, is noticed every day. His little brother Taane, who had a particular bond with Cypress, has been deeply affected. His mother Tanya has to try to manage for the sake of her other children but has an unfulfilled longing and feels heart-broken. She has relocated to be nearer family. Her mother Anne relives pulling Cypress from the water and her feelings of helplessness and guilt, despite her not knowing he was behind her. 
[28]
Ms Kerr-Taylor also spoke about not wanting to harbour animosity and wanting something positive to come from the tragedy with better education being put in place to “reduce the risks of such a tragic incident ever happening again” so that Cypress' life could represent something that really mattered and had meaning despite what had happened. The family hoped that the Court proceedings would provide a sense of closure and allow them to move forward, to continue to live, love and support one another and make more precious memories. They also wanted this for “Rick”, referring to Mr Allen. 
The circumstances of the defendant company and Mr Allen 
[29]
It is convenient at this point to refer in more detail to Mr Allen, whom it has already been noted is the governing director and sole shareholder of the defendant company. Mr Allen was present with his partner at Court and they also attended the restorative justice (RJ) conference. The detail that follows provides a relevant backdrop as to how it was that Mr Allen, through his small company Lenal Holdings Ltd, came to be involved with the Palm Springs hot pool complex in the first place. 
[30]
Mr Allen explained in court documentation that he is a man in his late fifties, who formed Lenal Holdings Ltd over 20 years ago, in 1995, for the purpose of employing himself to carry out security contracting services. He was the only employee; it was a “one-man band”
[31]
As a young man Mr Allen completed an avionics engineering apprenticeship with the national airline and obtained a NZCE in electronics. After being one of a great many who were laid off as part of a major restructure with the airline, he worked for electrical firms, before starting his own business in the 1980s installing security systems in buildings. It was through such work that, in 2014, Mr Allen came into contact with Mr and Mrs Liu and their Parakai based businesses, including the geothermal pool complex at 155 Parkhurst Road, Parakai. The complex is formally owned by Chic Garden Ltd, which became the registered proprietor on 27 February 2006. 
[32]
Mr Allen was initially requested by Mr and Mrs Liu to perform security work at two Parakai businesses, Parakai Springs Lodge and Mineral Park Motels. While performing that work, in mid-2014 Mr Allen also agreed to assist Mr and Mrs Liu with a building upgrade at the Palm Springs hot pools complex, 
[33]
In October 2014, Mr Allen agreed to take over the day-to-day running of Palm Springs from Mr and Mrs Liu's existing managers. Mr Allen explained to the Court that at that point, he had no prior experience whatsoever in the aquatic pool industry. He agreed to take over the running of the pool complex because he wanted “a lifestyle change, away from security contracting work”
[34]
Mr Allen considered that Palm Springs was run-down and seemingly poorly managed. His thought was that he could instigate a programme of renovation works and re-engineer the business systems, thereby making the complex appealing to customers, and eventually bringing it into good profitability. 
[35]
Mr Allen stated that “the level of informality was such that there was no discussion or agreement made” as between himself and Mr Liu about payment for his time spent managing building works and in the running of the complex and staff at Palm Springs at the time. It was Mr Allen's thought, apparently, that it would all work itself out in time, and he was content with that because he would still be in a position to carry out some security contracting work with third parties in order to support himself Counsel for Mr Allen submitted that “Perhaps naively, Mr Allen's thought was that later, when Palm Springs had become profitable, he would then be in a good position to negotiate remuneration for himself, or perhaps even to purchase the business for himself”
[36]
This arrangement continued from October 2014 to October 2015. As an engineer, Mr Allen familiarised himself with the chlorination and pool temperature monitoring requirements. Other than that, his focus was on renovation and refurbishment. 
[37]
Mr Allen has explained that it “simply did not occur to him” that the business owners or managers may owe obligations to the public under the Act, or that there may be documents available such as the New Zealand Recreation Association's “Aquatic Facility Guidelines” (the Guidelines),6
| X |Footnote: 6
New Zealand Recreation Association “Aquatic Facility Guidelines” (February 2015). 
which would assist with hazard management and safety procedures. 
[38]
In September 2015, after Mr Allen had been working for Mr Liu for approximately one year, Mr Liu arranged for his solicitors to prepare a lease between Mr Liu's company Mineral Park Ltd and Mr Allen's company Lenal Holdings Ltd. 
[39]
Mr Allen stated that prior to signing the lease, he turned his mind to the issue of customer procedures, including safety procedures that ought ideally to be in place. Although unaware that the Act may be relevant, or of the existence of the Guidelines, he discussed the matter with his partner Ms Shelley Walker, who had worked for many years as a receptionist for a more substantial pool complex a short distance away at 150 Parkhurst Road, Parakai (known as “Parakai Springs Hot Pools”). It is submitted that enquiries were made of the manager at that complex as to “his experience of the procedures that should be put in place. As a result of those enquiries, signage was drawn up and posted, including regarding pool supervision”
[40]
The lease was duly signed by Mineral Park Ltd as landlord, Lenal Holdings Ltd as tenant and Mr Allen as guarantor, and provided for a commencement date of 1 October 2015. This is the document under which the defendant was in occupation for just some three and a half months when, on 15 January 2016, Cypress drowned. 
[41]
It is convenient to note here that Mr Allen explained in his submissions that while he would have ordinarily been at work at the pools each day before it opened, on the day of the incident he had overslept because he had “reached a point where he was exhausted due to the long hours he was working to keep up with the combination of the busy holiday period and to progress building works”
[42]
It should be noted that Mr Allen was fully cooperative with the investigations into the incident. During the course of interviews he expressed surprise to learn that in 2008, the pools had been served with a Prohibition Notice requiring that a qualified lifeguard (with a current national lifeguard award) be designated to supervise the pools at all times. Mr Allen commented in the interview that this had not been raised with him when he took over the lease and that the previous operators had operated with one person only and no lifeguard. He also advised that since he had been associated with the site he had not been aware of any visit or notice from Worksafe. 
[43]
Defence counsel has submitted that Mr Allen found himself in charge of Palm Springs without any experience in the pool industry and with no awareness of the existence of his duties under the Act or the assistance provided by the Guidelines in meeting those duties. 
[44]
Mr Allen explained in documents which were before the Court that having had the duties under the Act and the existence of the Guidelines drawn to his attention by WorkSafe in January 2016 by way of an Improvement Notice (served after the incident), the defendant (through Mr Allen and his partner Ms Walker) immediately set about arranging for full compliance. He submitted that the required work was promptly carried out and included hiring two part-time lifeguards to cover the Palm Springs' opening hours. 
[45]
However, on 8 June 2016, the pool closed and has not since opened. Mr Allen explained that this was because of concerns in regard to the concrete floor slabs around the pool at the complex. It emerged that there had been an adverse engineer's assessment done in this regard in 2011 for the owners, about which he had been unaware despite, he states, having asked about such matters. 
[46]
After arranging for an updated assessment, Mr Allen became greatly concerned as to whether the possible failure of structures constituted a hazard to customers and enquiries confirmed that they were assessed as having exceeded their design life, comprising a concern structurally and being susceptible to collapse. 
[47]
Thus as a consequence, the defendant immediately closed the Palm Springs' doors. Mr Allen advised that he has endeavoured to obtain the Landlord's approval to carry out the required works, but has not obtained such approval or cooperation. 
[48]
Mr Allen advises that Lenal Holdings Ltd has not traded since June 2016. Its liabilities exceed its assets by a small margin. Financial statements detailing the position to 31 March 2016 were submitted to the Court, together with an updating balance sheet and profit and loss statement to 30 September 2016, and a copy of a director's resolution approving and accepting those statements. 
[49]
Mr Allen explained that prior to signing the lease for Palm Springs on or about 1 October 2015 Lenal Holdings Ltd had not traded since about 2000. It was submitted that the company owns no valuable assets and has no accumulated tax losses. Furthermore, the company does not have any statutory liability or other insurance which might have responded to liability arising from the present prosecution under the Act. 
Restorative justice 
[50]
On 21 January 2017 a RJ conference was held with Mr Allen and his partner Ms Walker present, as well as Ms Kerr-Taylor, as a representative of Cypress' family. A report from the RJ conference has been made available and it is clear that the conference was constructive and meaningful. 
[51]
The RJ conference provided an opportunity for those present to explain the impacts of the tragedy and express their combined feelings over the loss suffered and for Mr Allen to offer an apology “kanohi ki te kanohi” — face to face. Mr Allen expressed gratitude for that opportunity to express his deepest sympathies to the whānau and said that thoughts of Cypress would be with him until the day he died. There was a reassurance that the pools would not open unless they were properly compliant in regard to all appropriate water safety matters. He agreed to there being a short video made about water safety. 
[52]
Ms Kerr-Taylor referred to Mr Allen and his staff taking matters seriously and that they did “not want one person to be made solely responsible”. However Mr Allen explained that he took on the matters deeply, and personally, and took responsibility, also expressing regret for not having been present himself at the time. He acknowledged that the pool should have been a safe place. His partner Ms Walker also referred to the impact the event has had on Mr Allen, who has needed significant counselling and medical support. 
[53]
Although not mentioned in the RJ report, it has emerged that Ms Walker has known Cypress' family for many years and that both Ms Walker and Mr Allen were in immediate contact with the family when the tragedy occurred in January 2016. Defence counsel submitted that Ms Walker asked at the outset what they could do to assist and the family advised that while they did not want money as such, they would accept a gift, as “koha”. It was agreed that koha in the form of Countdown supermarket vouchers would be provided in the sum of $1,000. This submission has not been challenged and the Court accepts what it has been advised in regard to this matter. 
Quantifying appropriate reparation 
[54]
It is accepted that it is difficult to quantify emotional loss in terms of s 32(1)(b) of the Sentencing Act. Also, in a case such as this, the fixing of an amount should not be seen as an attempt to represent the value of a life. 
[55]
It is helpful to make mention at this point that the Court was advised by defence counsel that the defendant company may be wound up due to its financially impecunious position and being unlikely to be able to meet awards for either reparation or a fine. 
[56]
However it was mentioned that Mr Allen would personally pay reparation if he was in a position to manage that as an acknowledgement and gesture towards putting right, in some way, the wrongdoing. 
[57]
The prosecution explained that the agreed intention of Cypress' whānau would be to establish a trust into which any reparation funds ordered by the Court would be paid for the benefit of his siblings, Taane and Ocean. There seemed to be a shared understanding that this was a desirable and constructive approach. The Court commends all of those who have been party to these discussions. 
[58]
The prosecution has referred to recent cases that assist in determining an appropriate level of emotional harm reparation. The reparation orders in these cases fall in the range of $75,000 to $125,000. 
[59]
In WorkSafe New Zealand v Idea Services Ltd a 15 year old disabled young person drowned.7
| X |Footnote: 7
The District Court awarded $90,000 emotional harm reparation in addition to the $11,896.67 already paid for financial costs. 
[60]
In R v Burr a fatality occurred in a forestry situation.8
| X |Footnote: 8
R v Burr [2015] NZHC 2675Has Litigation History which is not known to be negative[Blue] 
The High Court (at first instance) awarded $75,000 emotional harm reparation. 
[61]
In R v New Zealand School of Outdoor Studies Ltd a Malaysian student drowned while on a diving course.9
| X |Footnote: 9
R v New Zealand School of Outdoor Studies Ltd [2016] NZDC 3081
The District Court awarded $125,000 emotional harm reparation and a further $25,610.50 for financial costs. 
[62]
In R v Bishop a trench collapsed resulting in the death of the victim.10
| X |Footnote: 10
R v Bishop [2016] NZHC 494
The High Court (at first instance) awarded $110,000 emotional harm reparation and a further $11,320 for financial costs, 
[63]
WorkSafe New Zealand v Cathedral Cove Dive Ltd concerned a diving fatality.11 The District Court adopted a starting point of $125,000 for emotional harm reparation, which was reduced due to defendant's financial circumstances. 
[64]
The prosecutor has submitted that in light of the case law and the circumstances of this case, an emotional harm reparation order at the top end of the range of around $125,000 is warranted. The defence invites the Court to consider reparation in the range of $30,000 to $60,000, taking into account the defendant's impecunious financial position. 
[65]
In considering the issue of quantification of emotional harm in this particular case, the Court takes notice of the following aggravating factors: 
(a)
Cypress was of a young age (seven years old) when the accident happened. He had his whole life ahead of him. The community could rightly expect that those with the responsibility to provide for the safety interests of a child at a pool facility would indeed do so. Children are vulnerable and naturally require a level of oversight and protection commensurate with their youth. 
(b)
Cypress' immediate and extended whānau have not only suffered his loss but many (including children) were also present to experience the trauma surrounding the events. For example, his mother and grandmother were involved with his being pulled (blue and unresponsive) from the bottom of the pool and they were present with him at the side of the pool while CPR was carried out with the assistance of other pool users for 50 minutes. As noted earlier, his father Eugene Hunapo had his own trauma, on hearing the news, driving to Auckland unsupported knowing that he was to face the grim reality of what had happened on his arrival there. 
(c)
Then, when Cypress was at the hospital, the whānau had to make the difficult decision to turn off his life support. 
[66]
It should also however be acknowledged that because of his young age (which is already noted as an aggravating feature of the case), this is not a case where the loss of life has left, for example, dependent children without a parent. This does not mitigate the emotional harm but it relates to what might be seen as the absence of what would be considered an aggravating feature of a case. 
[67]
In light of the particular facts of the offending, including the aggravating aspects identified, and taking into account the information put forward by the victims and orders made in recent decisions, emotional harm reparation in the vicinity of $120,000 would be warranted. However, given the information before the Court regarding Mr Allen and the defendant company's financial capacity, the Court considers a $60,000 is appropriate and feasible. 
[68]
For completeness, there is no basis on which the Court would make an order relating to financial loss pursuant to s 32(l)(c) of the Sentencing Act. 
Step two: Assessing quantum of fine 
[69]
As earlier noted, in Hanham & Philp Contractors the High Court established a framework for setting starting points in terms of the three bands of seriousness.12
| X |Footnote: 12
See paragraph [13] of this decision. 
 
[70]
The High Court also recognised that the assessment of culpability is concerned with the degree of blameworthiness for the offending. The following factors were identified as relevant to the assessment of culpability:13
| X |Footnote: 13
Hanham & Philp Contractors Limited, above n 1, at [54]. 
 

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