A High Court judge has found that the sentence for one of two men jailed for lying about a workplace accident was “manifestly excessive”.

William (Bill) Sullivan, the former health and safety manager at Nelson marine engineering firm Aimex, and his brother Steve Sullivan, the firm’s boss, were each jailed for their part in covering up details of a workplace incident days before a similar, more serious accident.

William Sullivan argued for a sentence of community work and supervision. On appeal, his sentence was substituted with one of home detention.

However, because he doesn’t have a suitable address that would allow for electronic monitoring, Justice Christine Grice has sent the matter back to the district court.

Sullivan’s counsel submitted that the appropriate sentence, given the charge and the appellant’s culpability, would have been one of community work and supervision.

Judge David Ruth erred when jailing William Sullivan in July, the High Court has found. Photo / Tess Jaine

William Sullivan deliberately misled a WorkSafe investigation into an incident involving an Aimex worker that happened days before a young worker was seriously injured while carrying out a similar task.

Aimex was sentenced in July 2021. It received a fine of $250,000 and was ordered to pay $65,000 in reparation and $1434 in costs after admitting a charge under the Health and Safety at Work Act.

The Crown argued the penalty might have been higher had the court known the full facts.

On July 21 this year, Judge David Ruth sentenced William Sullivan to nine months’ imprisonment for making a false statement, in relation to the first incident.

Several days later his brother was jailed for 20 months on a charge of perverting the course of justice.

William Sullivan appealed against his sentence on the basis that it was manifestly excessive, that Judge Ruth erred in imposing a sentence of imprisonment and ought to have imposed a sentence of community work and supervision.

The Crown opposed the appeal and said the sentence was within range.

At his sentencing, Judge Ruth considered Sullivan had disregarded his obligations as a health and safety officer, that his dereliction of duty was “outrageous” and that he had then for some unknown reason continued with the lie.

He felt Sullivan had to be held to account for his “serious dereliction of duty”.

The judge felt that “deterrence, both general and specific, must be the overriding and overwhelmingly important factors of this sentencing”, and therefore jailed him for nine months, with leave to apply for home detention once he had served more than half his sentence.

The High Court found the judge erred in granting leave on that basis.

Justice Grice noted that no suitable home detention address was available at the time of sentencing and no adjournment was sought to enable a report, although lawyer Marcus Zintl had said an address was available but it had not been assessed for technical suitability.

Justice Grice said the leave provision that allowed for an application for home detention applied where the court would have sentenced the offender to a sentence of home detention, but for the fact that, at the time of sentencing, a suitable address was not available.

In that case, she said, the court must make an order granting leave to apply for substitution of a sentence of home detention “if the offender finds a suitable residence at a later date”.

“It is clear this is not the basis on which the judge granted leave in this case.

“The judge erred in granting leave on this basis, and the respondent accepts this was an error.”

Sullivan also said the judge erred in sentencing him on the basis of breaching his duties as a health and safety officer.

The Crown accepted that not all of the blame lay with Sullivan and that he was only one offender, but he had played an important part in the creation of a situation that allowed “a guilty company to reduce its liability by hundreds of thousands of dollars, through misleading the investigating agency and the court”.

Justice Grice said the appellant was correct in saying that he was neither charged with nor convicted of causing the victim’s injuries and that at law he was not criminally responsible for the victim’s injuries, but she did not consider the judge sentenced him on that basis.

“I am satisfied that the judge sentenced the appellant on the charge on which he was convicted, that is making a false statement, but took the surrounding circumstances into account in determining the gravity of the offending and the defendant’s culpability, as he was entitled to do.”

Justice Grice said a sentence of community work and supervision would fail to recognise the seriousness of the offending in this case but, unlike the sentencing judge, she took the view that this was a case where a sentence of imprisonment was not the least restrictive outcome that was appropriate in the circumstances.

“The sentence of nine months’ imprisonment was, in my view, manifestly excessive. A sentence of home detention was appropriate,” she said, noting it was the second-most stringent and serious type of sentence, after imprisonment.

Because of the lack of a suitable address, she made an order for the district court to set aside the sentence and impose another that it considered appropriate after receiving information as to the possibility of home detention.

Steven Sullivan has also appealed against his sentence. A decision is expected soon.

Tracy Neal is a Nelson-based Open Justice reporter at NZME. She was previously RNZ’s regional reporter in Nelson-Marlborough and has covered general news, including court and local government for the Nelson Mail.