Download Court of Appeal replaces suspended sentence with custodial sentence

Judicial Communications Office
Thursday 18 May 2017
COURT OF APPEAL REPLACES SUSPENDED
SENTENCE WITH CUSTODIAL SENTENCE
Summary of Judgment
The Court of Appeal, sitting today in Belfast, revoked the suspended sentence imposed on
Norman McKenzie for the manslaughter of his employee Petyo Hristanov and imposed a
custodial sentence of 24 months (12 months to be served in prison and 12 months on
licence).
On 20 January 2015, Mr McKenzie was the employer of Petyo Hristanov (“the deceased”)
and two other Bulgarian nationals who were working on the construction of the steel
framework of an agricultural shed. The deceased and a co-worker were constructing the
roof of the shed. They were initially hoisted up in a box attached to the front a telescopic
handler driven by Mr McKenzie but had to climb onto the roof to complete the work. The
prosecution stated that there were no safety measures put in place, no discussion about
safety with the employees, and no risk assessment had been carried out. When it began to
rain the sheeting became slippery and word was sent to Mr McKenzie to ask if they could
cease work because of the rain. At one point the deceased lost his footing causing him to
slip, but he was caught by his co-worker. Shortly afterwards the deceased began to slip
down the roof feet first. His co-worker was unable to prevent him from sliding off the roof
and the deceased fell almost five metres to the ground. He suffered fatal head injuries upon
impact. In trying to prevent the deceased slipping, the co-worker was pulled from the roof
but suffered relatively minor injuries.
Mr McKenzie attended to the deceased and his co-worker and was clearly shocked and
immediately concerned for their welfare. In subsequent interviews by representatives of the
Health and Safety Executive of Northern Ireland however, Mr McKenzie claimed that the
deceased was reluctant to wear a safety harness and was “quite at liberty to come down off
the roof at any time if he felt weather conditions had deteriorated to such an extent as to
render the roof dangerous”. He further denied that it had been raining or that anyone had
spoken to him about the weather.
On 17 January 2017, Mr McKenzie pleaded guilty to manslaughter and counts of failing to
ensure the safety and welfare at work of an employee, failing to carry out an assessment of
the health and safety risks to an employee, and failing to take measures to prevent any
person falling a distance liable to cause a personal injury. He was sentenced to 15 months
imprisonment suspended for three years in respect of the manslaughter and fined £1,000 on
each of the three other offences making a total of £3,000. The Director of Public Prosecutions
referred the sentence to the Court of Appeal on the ground that he considered them to be
unduly lenient.
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Principles governing this case
The Court of Appeal endorsed the approach adopted in England and Wales when
sentencing for gross negligence manslaughter which is that greater importance should be
focused on the consequences of the offence. It reiterated that relevant factors affecting the
seriousness of the offence are:
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How foreseeable was serious injury?
How far short of the applicable standard did the defendant fall?
How common is this kind of breach in the defendant’s organisation?
How far up the organisation did the breaches go?
Was there more than one death?
The Court of Appeal further noted the comments of the Lord Chief Justice of England and
Wales on quashing a suspended sentence in a case of gross negligence manslaughter when
he said that imposing an immediate custodial sentence would have the effect of ensuring
that it is brought home to the offender and others that actions of this kind will almost
invariably require immediate custodial sentences: “In such cases judges must appreciate the
decision of Parliament that custodial sentences in gross negligence manslaughter cases are
almost inevitable, but that the length of the sentence must depend on the particular factors
in each case”. In contrast to England and Wales, there is no statutory requirement in
Northern Ireland to find exceptional circumstances before suspending a sentence of
imprisonment. The Court of Appeal, however, has stated that “where a deterrent sentence
is imposed it should only be suspended in highly exceptional circumstances as a matter of
good sentencing policy.
Prosecution counsel had informed the court that the deceased’s daughter did not wish Mr
McKenzie to be separated from his family. While the Court of Appeal said the clemency
sought was of great credit to the deceased’s daughter, it has been emphasised in case law
that courts cannot depart from what otherwise would be a proper sentence because of the
sympathetic views of the victims or their families.
The Court of Appeal concluded that the offences in this case carried a fatal consequence
which must be reflected by a deterrent sentence for the following reasons:
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To ensure that it is brought home to offenders that gross negligence of this kind,
where the lives of workmen are at risk, will usually require custodial sentences. The
Court said that there is no rational reason why individuals prosecuted for such
offences “tend to escape prosecution” and “we trust that in the future prosecutions
leading to condign punishment will be visited on the individuals in the company
responsible where it is appropriate to do so”;
Deterrence is necessary to prevent others behaving in this way and to bring to the
attention of the construction industry generally the consequences of failure to ensure
the safety of workmen. The Court noted “with grave concern” that it was indicated
during the trial that this type of practice is widespread in the construction industry
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and hoped that the sentence being imposed will “herald a radical alteration in this
state of affairs if that is the case”;
Men such as the deceased and other casual labourers are particularly vulnerable and
exposed in dangerous workplaces and it is the role of the court to protect the public
in general and such men in particular whose lives are at risk working at heights:
“The onus rests on employers to be responsible for their safety”.
The Court of Appeal then made the following determinations:
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The risk of death or serious injury was foreseeable for men working from a height of
five meters without protection, particularly in the weather conditions prevailing that
day;
There was a total absence of safety assessment or precautions and Mr McKenzie fell
“wantonly short” of the standard to be expected from employers of workmen;
The Court did not consider that this was a one-off occurrence and accepted that
during this job the deceased and his co-workers had not received health and safety
instructions, safety working clothes or equipment and there was no scaffold around
the building. It said the complete lack of insight exhibited by Mr McKenzie during
his interviews bore witness to the fact that such breaches were likely to have been
common in his employment;
Mr McKenzie was in day to day control of the business and was completely
responsible for the safety of the deceased;
There was a fatal consequence;
Mr McKenzie did not accept responsibility for some time and had made “patent
unjustified attempts” to blame the deceased for failure to take precautions for his
own safety;
The plea of guilty was entered only at a very late stage and after the jury had been
sworn.
The Court of Appeal considered that the starting point for an offence of manslaughter of this
nature should have been four years imprisonment and that the other lesser offences should
have had a starting point of 12 months imprisonment. It recognised a number of points in
mitigation, including Mr McKenzie’s clear criminal record and good character but
commented that such features are often identified typically with people like him who are
trying to run a business but who sometimes take dangerous shortcuts in order to speed up
their process and reduce the cost. The Court said that a generous reduction by way of
mitigation would have reduced the starting point to three years imprisonment. The guilty
plea, in light of the lateness, would have further reduced the sentence to thirty months.
The Court of Appeal concluded that the sentences in this case were unduly lenient in each
instance and that a condign punishment should have been two years and six months
imprisonment. It said that, in light of the fatal consequences in this case and the need for
deterrence, there was no basis to suspend the sentence and therefore the period of custody
must take effect immediately. The Court recognised that in this case Mr McKenzie left the
Crown Court believing that he was not going into custody having been given a suspended
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sentence and that it will undoubtedly come as a considerable blow to find he must now
serve a sentence. Taking that factor into account the Court of Appeal determined that a
sentence of 24 months on the charge of manslaughter should be the appropriate sentence of
imprisonment to reflect this. The Court further considered the fines imposed on the three
other counts were also unduly lenient and that these offences merited a period of
imprisonment. It removed the fines and imposed concurrent sentences of six months
imprisonment on each of the counts to run concurrently with the 24 months imposed for
manslaughter.
Mr McKenzie was told to immediately surrender to the authorities and will serve 12 months
in custody and 12 months on licence.
NOTES TO EDITORS
1.
This summary should be read together with the judgment and should not be read in
isolation. Nothing said in this summary adds to or amends the judgment. The full
judgment will be available on the Court Service website (www.courtsni.gov.uk).
ENDS
If you have any further enquiries about this or other court related matters please contact:
Alison Houston
Lord Chief Justice’s Office
Royal Courts of Justice
Chichester Street
BELFAST
BT1 3JF
Telephone: 028 9072 5921
E-mail:
[email protected]
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