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Safeguard OSH Solutions - Thomson Reuters



OSH Tracker

R v Burr (HC, 30/10/15)

OSH Tracker

Defendant:
Paul Burr
Paul Burr was fined $25,000 and ordered to pay reparation of $75,000 after a tree he felled struck and killed 20-year-old Lincoln Kidd on a forestry block near Levin in 2013. His company, Paul Burr Contracting Ltd, is in liquidation. Burr had pleaded guilty to this HSE Act charge before his separate trial for manslaughter and a separate HSE Act charge was heard (he was acquitted) but details of his earlier plea were suppressed until the trial was over (High Court, Palmerston North, 30 October 2015). 
Industry:
Agriculture, Forestry and Fishing
Sub-Industry:
Forestry and Logging
Risk:
Struck by falling object
Harm:
Death
Penalty Amount:
$100000.00
Reparation Amount:
$75000.00
Appeared in Safeguard issue 154

Judgment Text

SENTENCE OF BROWN J 
Brown J
[1]
Paul Burr Contracting Limited (PBCL), now in liquidation, appears for sentencing having pleaded guilty to a charge laid under ss 6 and 50(1)(a) of the Health and Safety in Employment Act 1992 (the HSE Act). 
[2]
Paul Burr, who was a director of PBCL, appears for sentence having pleaded guilty to a charge laid under ss 6, 50(1)(a) and 56 of the HSE Act, namely that being a director of PBCL he participated in a failure of the company to take practical steps to ensure no employee was harmed at work. 
[3]
Guilty pleas were entered by both defendants in the Levin District Court on 13 August 2014 being the first appearance on the charges. Sentencing is occurring in the High Court as a consequence of other charges having been filed which were required to be heard in the High Court. 
[4]
The offences carry a maximum penalty of a fine not exceeding $250,000. 
[5]
Now to all the non lawyers present, and that is the great majority of you, some of what I am going to say may sound like legal jargon. However the task of sentencing in cases under the HSE Act is complex and I am required to follow a certain process and it is for that reason that I will be referring to the matters that I do. I recognise at the outset that nothing I can say can bring closure for those involved. Indeed “closure” is a singularly inapt word. All a Judge can do is bring a conclusion to the court process. Your lives will continue affected by the events that bring us all here today. 
The facts 
[6]
I first address the facts. At the time of entering the guilty pleas on 13 August 2014 a summary of facts had not been agreed. That situation came about in circumstances where there was to be a trial in this Court on other charges against Mr Burr. Mr Burr was acquitted on those charges by a jury on 14 September 2015. 
[7]
Although strictly speaking there is still not an agreed statement of facts, both sides through counsel have submitted versions of the facts which have a substantial degree of commonality. To the extent that there are points of difference, I have reached my conclusions on those aspects by reference to the evidence which was led at the trial. 
Context 
[8]
In December 2013 PBCL had three employees: The defendant Paul Burr, the deceased Lincoln Kidd and Ray Pakau. Mr Pakau had worked for PBCL for approximately five years. The deceased had been working for PBCL for several months but had limited experience in clearfell harvesting operations. 
[9]
PBCL owned a Volvo excavator fitted with a Warratah processing head which was operated by Mr Burr. Other equipment included a Hitachi excavator fitted with a grapple (used by Mr Pakau) and a skidder. Mr Burr felled and delimbed trees using the Volvo. Mr Pakau would use the Hitachi to load the logs. The deceased would manually fell trees, cut them to length and operate the skidder. 
[10]
In 2013, PBCL was engaged by principal Timothy Hunt (a forestry management contractor) to clear fell a private woodlot known as the Aratangata No 2 Block located on State Highway 1, Koputoria, Levin. PBCL's work on this site commenced in early December 2013 and at least when present on the site the defendant Paul Burr was responsible for the operations on the site. 
[11]
Prior to entering into this arrangement PBCL had been undertaking work pursuant to a production thinning contract with Rayonier Limited at Waitarere forest. PBCL had been audited on its health and safety systems in May 2013 as part of that contract and had achieved a score of 85 per cent. 
[12]
PBCL's health and safety systems made reference to safe zones, effective communication and the two tree-length rule. Company records showed that whilst working at previous sites run by Rayonier, PBCL had maintained safety register records, site hazard assessment records, training and supervision records, and new site assessment records. 
[13]
The defendant Paul Burr had previously received forestry training from a training assessor, John Franklin, who assessed him as competent. However the defendant had not received formal qualifications for this training. 
[14]
The defendants had a copy of the Approved Code of Practice for Safety and Health in Forest Operations (ACOP) and the best practice guidelines for tree felling and mechanical tree harvesting. 
[15]
The ACOP sets out that all fallers or harvest operators must ensure that no other operators are within two tree lengths of any tree being felled, and no person shall be closer than two tree lengths to a tree being felled except for certain specified individuals such as a trainer (at 11.4.3). 
[16]
The ACOP provides that all sites must have an effective means of communication. 
[17]
At the Aratangata site: 
(a)
the defendants opted to rely on personal cell phone communications between Mr Pakau and Mr Burr rather than utilise open channel radios which PBCL owned and had used on previous sites; 
(b)
no records were kept regarding toolbox/tailgate morning meetings, site safety assessments, hazard assessments, training plans, supervision plans or harvest plans. The only records related to two incidents on 9 and 16 December 2015 when the powerlines at the front of the property were struck by machinery owned by PBCL. There were no records kept relating to this site. 
The incident 
[18]
On 19 December 2013 the defendant Mr Burr, Mr Pakau and the deceased were at the site at around 6 am. Mr Burr directed Mr Pakau and Mr Kidd to cut down a part of a fence located towards the rear of the Aratangata block. Mr Pakau undertook this task using the Hitachi machine. 
[19]
A short time later after felling a couple of trees Mr Burr instructed the deceased to manually fell four trees in the same area. This occurred under the supervision of Mr Pakau in the Hitachi and the defendant Mr Burr in the Volvo and the felled trees were moved by Mr Pakau using the Hitachi. 
[20]
Mr Pakau then returned to the skid site. It is not known whether or not the deceased also returned to the skid site, a matter to which I will return shortly. Neither Mr Pakau nor Mr Burr knew where the deceased was, both proceeding on the assumption that he had returned to the skid site. 
[21]
The defendant Mr Burr resumed felling trees using the Volvo machine. He felled three trees which were located on a slope. He commenced felling a fourth tree, which was approximately 29 metres in height. At this time, it transpired that the deceased was standing approximately 7 metres behind the Volvo alongside the trees he had previously manually felled. The deceased was 17 metres away from the stump of the tree the defendant was felling. The defendant was not aware of the deceased's location. 
[22]
The fourth tree the defendant was felling did not fall into the slope. Instead, it fell backwards, striking both the Volvo machine and the deceased, killing him instantly. 
The charges 
[23]
The HSE Act requires that employers take all practicable steps to ensure that no employee is harmed whilst at work. 
[24]
On 19 December 2013, the employer PBCL failed in this duty. Mr Burr, as director of PBCL, participated in this failure as follows: 
(a)
a failure to provide an effective means of communication on site: the defendants relied only on cellphone communication. On 19 December 2013, the only cellphone contact was between Mr Burr and Mr Pakau. Up to the point where the deceased was killed, there was no contact between either Mr Burr or Mr Pakau and the deceased ascertaining his location. 
(b)
failure to ascertain the whereabouts of the deceased, an employee, in circumstances where there had been a switch from manual felling to mechanised felling and accordingly people had previously been in the work zone of the mechanised felling machinery: the defendant had instructed the deceased to enter the area where mechanised felling was to take place. The deceased was directed to manually fell the four trees in the work zone of the defendant's mechanised felling. Before returning to mechanised felling, the defendant failed to ascertain the whereabouts of the deceased, instead assuming he had returned to the skid site. 
[25]
A practicable step that could and should have been taken was to identify with precision the whereabouts of all employees prior to recommencing mechanical harvesting. 
[26]
When interviewed, the defendant Mr Burr: 
(a)
confirmed he did not know where the deceased was and did not check the deceased's whereabouts prior to starting work. He said he assumed the deceased had returned to the skid site with Mr Pakau; 
(b)
confirmed he was aware of the two tree-length rule and considered it to be “common practice” in the industry and that when PBCL worked on Rayonier's sites the two-tree rule was discussed “all the time”
(c)
confirmed he had a copy of the ACOP and had gone through it with Mr Pakau previously because of the Rayonier's health and safety requirements; 
(d)
confirmed PBCL owned mobile radios but that PBCL had opted not to use them on the site, instead relying on personal cell phones. 
Sentencing methodology 
[27]
The HSE Act makes specific provision concerning the sentencing of persons convicted of an offence under the Act. Section 51A headed “Sentencing criteria” states: 
“51A
Sentencing criteria 
(1)
This section applies when the Court is determining how to sentence or otherwise deal with a person convicted of an offence under this Act. 
(2)
The Court must apply the Sentencing Act 2002 and must have particular regard to— 
(a)
sections 7 to 10 of that Act; and 
(b)
the requirements of sections 35 and 40 of that Act relating to the financial capacity of the person to pay any fine or sentence of reparation imposed; and 
(c)
the degree of harm, if any, that has occurred; and 
(d)
the safety record of the person (which includes but is not limited to warnings and notices referred to in section 56C) to the extent that it shows whether any aggravating factor is absent; and 
(e)
whether the person has— 
(i)
pleaded guilty: 
(ii)
shown remorse for the offence and any harm caused by the offence: 
(iii)
co-operated with the authorities in relation to the investigation and prosecution of the offence: 
(iv)
taken remedial action to prevent circumstances of the kind that led to the commission of the offence occurring in the future. 
(3)
This section does not limit the Sentencing Act 2002. ”
[28]
As the full Court of the High Court in Department of Labour v Hanham & Philp Contractors Ltd stated:1
| X |Footnote: 1
Department of Labour v Hanham & Philp Contractors Ltd [2008] 6 NZELR 79, (2008) 9 NZELC 93,095 (HC) at [24] and [26]. 
 
“Section 51A(2) identifies particular provisions in the Sentencing Act and other matters to which the sentencing Judge must have particular regard. 
While s 51A provides specific focus to the sentencing exercise under the HSE Act, it is not to be regarded as dominating or overriding the Sentencing Act. The latter must remain the principal guide to the sentencing judge. ”
[29]
The Court there summarised the sentencing approach, which I will follow today, as follows: 
“[80]
Before considering the merits of the individual appeals we summarise the approach to sentencing for offending under s 50 HSE: 
(1)
Both s 51A HSE and the Sentencing Act are relevant to the sentencing process. 
(2)
The sentencing process involves three main steps: 
Assessing the amount of reparation. 
Fixing the amount of the fine. 
Making an overall assessment of the proportionality and appropriateness of the total imposition of reparation and the fine. 
(3)
Reparation and fines serve discrete statutory purposes and both should ordinarily be imposed. But where lack of financial capacity does not permit both the payment of appropriate reparation and a fine, the former is to receive priority. 
(4)
The first main step is to fix reparation. It involves a consideration of the statutory framework, taking into account any offer of amends and the financial capacity of the offender. 
(5)
The second main step is to fix the amount of the fine. That should follow the methodology established by the Court of Appeal in 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. 
(6)
The assessment of a starting point for the fine involves an assessment of the culpability for the offending. Starting points should generally be fixed according to the following scale: 
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 
(7)
The starting point for the fine is then to be adjusted for any relevant aggravating and mitigating factors relating to the offender. 
(8)
Reparation is then to be taken into account in fixing the fine. 
(9)
Financial capacity to pay a fine is also to be considered in fixing the fine. 
(10)
The third main step is to assess whether overall burden of the reparation and fine is proportionate and appropriate. ”
Step one - reparation 
[30]
Section 32 of the Sentencing Act 2002 states: 
“32
Sentence of reparation 
(1)
A court may impose a sentence of reparation if an offender has, through or by means of an offence of which the offender is convicted, caused a person to suffer— 
(a)
loss of or damage to property; or 
(b)
emotional harm; or 
(c)
loss or damage consequential on any emotional or physical harm or loss of, or damage to, property. ”
[31]
Six victim impact statements have been received from the following persons: 
(a)
Lesley Kidd, the mother of Lincoln; 
(b)
Craig Kidd, the father of Lincoln; 
(c)
James Kidd, Lincoln's older brother; 
(d)
Lillian Kidd, Lincoln's sister; 
(e)
Jessica Hearfield, Lincoln's girlfriend; and 
(f)
Debbie Boswell, the best friend of Lesley. 
[32]
I have read them all carefully. I pay tribute to the courage you have shown Mrs Kidd and Mr Kidd and Ms Hearfield in reading them aloud today. Lincoln would have been proud. 
[33]
The six statements collectively paint a picture of a wonderful young man, industrious, loyal and full of life. The role he played can be captured just a little by two metaphors which appear in those statements — a 24 carat gold absolute good guy; the fifth gear in the Kidd family. The sense of loss is palpable. Words can do little to assuage the pain and nor can a monetary payment. 
[34]
As His Honour Judge Ronayne observed in Ministry of Business Innovation & Employment v Watercare Services Ltd:2
| X |Footnote: 2
Ministry of Business Innovation & Employment v Watercare Services Ltd DC Auckland CRI-2011-004-21851, 20 September at [66]. 
 
“ … fixing amounts of reparation is, in no way, an attempt by the Court to place a monetary value on a tragically lost life … That is an impossible task. Rather, it is the best that a Court can do within a statutory framework to recognise loss and emotional and physical harm by means of a monetary payment which may or may not ease the burden on those affected. ”
[35]
Recognising that no reparation order can appropriately compensate for the loss of Lincoln Kidd, the Crown draws attention to recent District Court authorities on reparation awards which it submits may be of assistance: 
“(a)
Pike River Coal: $110,000 reparation awarded per victim. It is accepted that award is at the upper end of reparation awards; 
(b)
McCullough: $75,000 reparation for a fatality in a forestry workplace where the victim was crushed between an excavator and a tree stump; 
(c)
Complete Logging: $75,000 reparation for a fatality in a forestry workplace where the victim, a young forestry worker, was struck by tree being felled by another employee (and shareholder) who had failed to ascertain the whereabouts of the deceased. ”
[36]
On the basis of those authorities the Crown submits that a reparation order of no less than $75,000 is appropriate. 
[37]
As it happens the defendant company and Mr Burr as director, through insurers, have made an offer in that sum. 
[38]
I consider that the figure of $75,000 is appropriate. It is consistent with other cases involving fatalities in a forestry context, namely McCullogh, Complete Logging and the further authority cited by the defendants, Kelly v Puketi Logging Ltd.3
| X |Footnote: 3
Kelly v Puketi Logging Ltd [2015] NZDC 19783
 
[39]
Consequently there will be an order for reparation in the sum of $75,000. 
[40]
Under s 36 of the Sentencing Act, the Court is required to make an order as to whether the reparation should be paid in a lump sum, immediately or by instalments. Mr Temm advises that the sum may be paid immediately and accordingly I make an order in terms of s 36(1)(b). 
[41]
Section 38 of the Sentencing Act requires that every sum payable under a sentence of reparation must be paid to a person who suffered the harm, loss or damage. The obligation to make that determination, difficult as it is, lies with the Court. I have thought very carefully about this and I have concluded that the reparation payment should be allocated as between two thirds to Lincon's family and a third to his partner. Consequently I direct that the reparation sum is to be distributed as follows: $30,000 to Mr and Mrs Kidd jointly, $25,000 to Ms Hearfield and $10,000 each to James Kidd and Lillian Kidd. 
Step two — fine 
[42]
Whereas reparation is compensatory in nature and is designed to recompense an individual or family for loss, harm or damage resulting from the offending, a fine is punitive in nature, designed to serve the sentencing goals of denunciation, deterrence and accountability. The assessment of culpability is concerned with the degree of blameworthiness for the offending. In Hanham & Philp the Court viewed the assessment of culpability as including the following factors: 
“•
The identification of the operative acts or omissions at issue. This will usually involve the clear identification of the ‘practicable steps’ which the Court finds it was reasonable for the offender to have taken in terms of s 2A of the HSE Act. 
An assessment of the nature and seriousness of the risk of harm occurring as well as the realised risk. 
The degree of departure from standards prevailing in the relevant industry. 
The obviousness of the hazard. 
The availability, cost and effectiveness of the means necessary to avoid the hazard. 
The current state of knowledge of the risks and of the nature and severity of the harm which could result. 
The current state of knowledge of the means available to avoid the hazard or mitigate the risk of its occurrence. ”
[43]
The Crown submits that the incident at Aratangata was the result of a number of failures and occurred in an environment of known avoidable hazards and against a background of a positive safety recommendation of which the defendants were well aware. 
[44]
The Crown submits that the assessment of culpability can be guided by the following High Court authorities: 
Black Reef (in Hanham & Philp): accidental death of worker resulting from a failure to take known and recognised precautions — culpability at middle of high range, starting point $140,000. 
Cookie Time (in Hanham & Philp): accidental non-permanent injury to employee resulting from an obvious and well-known hazard that could have been easily prevented — culpability at cusp of medium to high range with a starting point of $100,000. 
Hanham & Philp: serious injury resulting from the use of obviously inadequate scaffolding when adequate scaffolding could have been used — culpability at low end of high range with a starting point of $125,000. 
Eziform Roofing: serious injury (with long term effects) resulting from a fall from a two-storey roof in circumstances where there was no scaffolding or any other steps taken to prevent falling — culpability on the cusp of the medium to high range and a starting point of $100,000 appropriate. 
Harvestpro: serious injury sustained from a falling tree in circumstances where there was a lack of communication and a lack of supervision — culpability assessed the upper end of the medium range and a starting point of $80,000 considered appropriate. ”
[45]
Additionally, the Crown submits the case of Complete Logging (supra) is of assistance, involving as it does similar facts to this case and that case's starting point for the fine was $100,000. 
[46]
The felling of trees in the context of this case was an obvious hazard. And I accept the submission for the defendants that the key omission in this case was to know the precise whereabouts of Lincoln Kidd at the time the mechanical harvesting recommenced and to continue to keep a visual safety watch and control over the safe work area of the Volvo harvesting machine. There was a failure to make a telephone call to identify Lincoln's whereabouts. There was a failure to deploy what would have been an appropriate and effective means of communication. 
[47]
The Crown submits that the defendant's culpability falls in the high culpability category with the consequence that an appropriate starting point is not less than $100,000. The defence refer to various cases in support of a starting point reflecting culpability in the high medium to low high range. They argue that the starting point in Harvestpro of $80,000 most closely reflects the present case. 
[48]
The Crown acknowledges that an assessment of culpability for the purposes of setting a starting point may include an assessment of the conduct of the victim in accordance with s 9(2)(c) of the Sentencing Act 2002.4
| X |Footnote: 4
Mareikura v R [2012] NZCA 108Has Cases Citing which are not known to be negative[Green]  at [10]. 
 
[49]
However Ms Fitzherbert notes the observations of the full court in Hanham & Philp where the notion that a victim's conduct should minimise culpability was rejected in the situation where there was an obvious hazard which could easily have been prevented. Attention is also drawn to the observations of Justice Duffy in Eziform to the effect that, while a victim's intentional or wilful disregard for safety practices may well mitigate otherwise seriously culpable conduct on the part of the employer, it would be wrong to permit employers to rely on an injured employee's foolishness or carelessness to mitigate the employer's culpability. Accordingly the Crown argues that Lincoln Kidd's actions do not warrant mitigation of the defendant's culpability. 
[50]
The defence is diplomatic on this issue. They simply say that, without seeking to avoid blame or minimise culpability, the circumstances of the case involved errors by both Mr Burr and the deceased, noting that there was some conduct of Lincoln that cannot be explained. Certainly at the trial it was a puzzle how Lincoln's kombi can ended up in the tray of Mr Pakau's ute. That exercised the minds of all engaged in the trial. Indeed it was the subject of a specific jury question. 
[51]
There was no evidence that anyone other than Lincoln put it there. And if that is so, then it must follow that Lincoln did return to the skid site as Mr Burr and Mr Pakau assumed. But having done so, then for unfathomable reasons Lincoln must have retraced his steps back into the Volvo's work zone and began to trim branches from the trees he had earlier felled. 
[52]
The Crown's proposed summary of facts asserts (and I quote) “Lincoln did not return to the skid site”. However no evidence can be pointed to to demonstrate how, when the kombi can disappeared from the Volvo's zone after Lincoln felled the four trees, it arrived in Mr Pakau's ute. Only Lincoln would know and hence that puzzle will remain unsolved for all time. 
[53]
However, whatever the reason may be, I am satisfied that Lincoln was aware of the two-tree rule. Given that fact, it follows that his election to be in the Volvo's work zone (whether he stayed for the duration or left and then returned) was relevant conduct in terms of s 9(2)(c). 
[54]
Having regard to the overall circumstances, I consider that a starting point of $85,000 is appropriate. 
Personal aggravating features 
[55]
It is accepted that the defendants have no previous convictions for offending of this nature. 
[56]
However the Crown submits that the defendant company has previously been warned by various work safety agencies regarding work place incidents. While accepting that those warnings were historic in nature and accordingly are relatively remote, the Crown contends that the previous history should be considered as a neutral factor. I agree with that. 
Personal mitigating factors 
[57]
Counsel for the defendants points to several matters which it is submitted qualify for consideration as mitigating factors. 
[58]
First, it is submitted that there was full co-operation with the authorities by way of two interviews with WorkSafe and an interview with the New Zealand Police. Mr Burr co-operated fully with all requests of him and provided full accounts of all events he could recall. I further note Mr Burr that you have had the courage to attend today when strictly speaking you are not obliged to do so. 
[59]
Mr Burr himself has suffered significant emotional and psychological consequences and has attended regular counselling. The point is also made that his efforts immediately after the accident to render assistance to Lincoln fruitless as they were should not be overlooked. 
[60]
Several references and testimonials have been provided to the Court from Mr Burr's supportive partner, his GP, his counsellor and several friends. These references highlight Mr Burr's character, the emotional cost to him and his family and the severe financial consequences of the failure of PBCL. 
[61]
Mr Burr has completed restorative justice with the deceased's partner, Jessica Hearfield and the deceased's brother, James Kidd. The Crown draws attention to the fact that the report indicates that the restorative justice process was an effective process for those involved. However the deceased's parents and other family members have declined to be involved in restorative justice as is their entitlement. 
[62]
In my view cumulatively these factors justify a discount of 20 per cent from the initial starting point, reducing the amount to $68,000. 
[63]
A further consideration is the order made for reparation. In Hanham & Philp the Full Court said5
| X |Footnote: 5
At [69]. 
that, without seeking to establish any hard and fast rule, a discount of up to 10 to 15 per cent to the level of fine to recognise the order of reparation is reasonable. Having regard to the order made and the voluntary earlier payment by Mr Burr of $4,000 I consider that a further discount of 15 per cent is justified. That reduces the figure to $57,800. 
[64]
For the defendants it is submitted that Mr Burr has throughout demonstrated and expressed personal grief for Lincoln's death and genuine remorse. I accept that that is so. However remorse is reflected both in a guilty plea discount (to which I will shortly refer) and in the discount allowed to reflect the fact of an order for reparation. I do not consider that it is appropriate to allow a still further specific discount on account of remorse over and above the remorse reflected in those two matters. 
[65]
In addition to the discount for the personal mitigating factors referred to there is the further consideration that the defendants pleaded guilty to the s 50 charges at an early opportunity. The Crown accepts, rightly in my view, that the defendants are entitled to a full 25 per cent for the guilty pleas.6
| X |Footnote: 6
Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607Has partially negative history or cases citing, but has not been reversed or overruled[Yellow] 
 
[66]
Consequently after the application of the consecutive discounts a figure for a fine is reached of $43,350. 
Step three — overall assessment 
[67]
I turn to the third step which is overall assessment. The third step in the sentencing methodology process is to assess the overall suitability of the end sentence with reference to what we call the totality principle. On this issue the Court in Hanham & Philp said this: 
“[78]
This last step involves a consideration of the total imposition on the offender of reparation and fine. The total imposed must be proportionate to the circumstances of the offending and the offender. This assessment is to be made against the background of the statutory purposes and principles of sentencing as already discussed. 
[79]
Where more than one person is convicted in relation to the events at issue, it will be necessary to consider whether and if so how to apportion the payment of reparation and fines between the defendants. The court would need to have regard to factors such as relative culpability, financial capacity and the extent to which the burden would fall on the various defendants (for example, whether a fine or reparation would fall both on a small company and its individual proprietor). ”
[68]
So far as the circumstances of the offending are concerned, I do not consider that the combined sum of $118,350 is disproportionate. However that is not the only factor which I am required to have regard to. 
[69]
The relevance of the financial capacity of an offender to the sentencing process is made apparent by several provisions of the Sentencing Act 2002, namely: 
“14
Reparation, fines, and financial capacity of offender 
(1)
Even if it would be appropriate in accordance with section 13 to impose a fine, a court may nevertheless decide not to impose a fine if it is satisfied that the offender does not or will not have the means to pay it. 
(2)
If a court considers that it would otherwise be appropriate to impose a sentence of reparation and a sentence of a fine, but it appears to the court that the offender has or will have the means to pay a fine or make reparation, but not both, the court must sentence the offender to make reparation. 
 
35
Taking into account financial capacity of offender 
(1)
If the offender has insufficient means to pay the total value of the loss, damage, or harm, the court may sentence the offender to make— 
(a)
reparation for any amount that is less than the value of the loss, damage, or harm; or 
(b)
payment by instalments in respect of the loss, damage, or harm; or 
(c)
both (a) and (b). 
(2)
Subsection (3) applies if the court is considering whether to impose— 
(a)
more than 1 sentence of reparation on an offender; or 
(b)
a sentence of reparation and a sentence of a fine on an offender; or 

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