Director of Public Prosecutions v Celsius Fire Services Pty Ltd

[2023] VCC 2385

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-22-01828

DIRECTOR OF PUBLIC PROSECUTIONS

v

CELSIUS FIRE SERVICES PTY LTD

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JUDGE:	HIS HONOUR JUDGE WRAIGHT
WHERE HELD:	Melbourne
DATE OF HEARING:	24 November 2023
DATE OF SENTENCE:	15 December 2023
CASE MAY BE CITED AS:	DPP v Celsius Fire Services Pty Ltd
MEDIUM NEUTRAL CITATION:	[2023] VCC 2385

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing.

Catchwords:              Plea of guilty – Failing to ensure that the workplace was safe and without risks to health – Breach assessed as low level – Delay.

Legislation Cited:      Occupational Health and Safety Act 2004 s 26(1); Sentencing Act 1991 s 6AAA.

Cases Cited:Dotmar Epp Pty Ltd v The Queen [2015] VSCA 241; DPP v Frewstal Pty Ltd (2015) 47 VR 660; DPP v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676.

Sentence:                  Without conviction, fined $35,000.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Dr P Bender Mr T Joseph	Office of the Public Prosecutions
For the Accused	Mr G Livermore SC Mr M Shume	Henry William Lawyers

HIS HONOUR:

Introduction

1Celsius Fire Services Pty Ltd (‘Celsius’) has pleaded guilty to 1 charge of failing to ensure, as a person who had to an extent the management or control of a workplace, that that workplace was safe and without risks to health contrary to s 26(1) of the Occupational Health and Safety Act 2004 (‘the Act’), which, for a body corporate at the relevant time, carried a maximum penalty of 9000 penalty units or $1,299,240.

2Celsius has no prior Criminal Record.

Circumstances of the offending

3A document entitled ‘Summary of Agreed Statement of Facts Between the Parties for the Purpose of Plea and Sentence’ dated 30 November 2023 was prepared  for the purposes of the plea hearing. Its facts may be summarised as follows:

Background

4The Seahaven aged care facility (‘Seahaven’) is located in Inverloch, Victoria and is run by Domain Aged Care Services Pty Ltd (‘Domain’).

5Celsius Fire Services (‘Celsius’) is as expert company in the fire services industry providing fire protection services.

6Seahaven consists of three wings. Nautilus is a dementia wing which has 19 bedrooms and was fully occupied in January 2014.

7Robyn Broms (now Robyn Lyndon) was the manager of the Seahaven Facility in 2014.

8On 16 January 2014, a fire started in the Nautilus wing which ultimately culminated in the evacuation of residents and staff. Two of the residents in Nautilus were confined to their beds. One of the residents, Clifford Eavis was in Palliative care.

Celsius’ fire safety services

9By virtue of a contract with an entity related to Domain, DAC Finance Pty Ltd, that was entered into in February 2013, Celsius was contracted to provide services to all of Domain’s Aged Care Homes, including the Seahaven Facility.

10In summary, the services were to ensure that Domain’s fire detection and suppression plant and equipment complied with all applicable laws, regulations, industry codes of conduct and Australian Standards. In this case, the applicable Australian Standard was AS 1851 – Maintenance of fire protection systems and equipment.

11Celsius also separately quoted and approved works for Domain from time to time. The work that was being done on 15 and 16 January 2014 in relation to extending the sprinkler system was work outside of the scope of the contract and had been separately approved by Domain after receiving a quote from Celsius.

Domain systems and procedures

12Domain had in place detailed maintenance and safety procedures, including procedures as to what to do if its fire detection and suppression equipment was impaired, that is, not operating fully because of work being done to the system. Domain had a separate expert third party contractor, ‘First Five Minutes’, in relation to the development of these procedures and the training of staff in that regard.

Seahaven’s fire detection and suppression systems

13The fire safety systems at the Seahaven Facility included, amongst other things, the following fire detection, fire suppression and occupant warning components:

(a)   fire detection was in the form of smoke detectors and manual call points;

(b)   fire suppression was made up of a fire sprinkler system and other suppression devices such as fire extinguishers, hoses and fire blankets; and

(c)   occupant warning (audible or visual to alert a person of a fire) – internal bells, nurse call system, PA system, sounders, DECT phones, a buzzing sound emitted from the fire indicator control panel, as well as a system to alert the local fire brigade in the event of a fire.

14The majority of the fire safety systems were controlled by the fire indicator panel (‘FIP’) located in the reception area at the Seahaven Facility. Celsius did not install or program the FIP.

15The FIP can be used to ‘isolate’ (i.e. disable) all or some of the outputs.

Work on 15 and 16 January 2014

16On 15 and 16 January 2014 Celsius plumbers attended the Seahaven Facility and were inducted into the site and issued a ‘Hot Works Permit’ as the work they were doing on the sprinkler system required them to cut and weld some pipes. They inserted what was known as an ‘ASE key’ into the FIP and isolated aspects of the system on the FIP, including the external alarms, to ensure that alarms were not wrongly triggered because of the work they were doing.

1715. When inserted, the ASE key prevents outputs going to the fire monitoring company and the fire brigade. Insertion of the key tells the monitoring company that the system is being worked on but does not provide the detail of the work.

Celsius impairment forms

18Celsius has two forms that can be completed and provided to a client prior to a fire system being isolated when maintenance works are being conducted (‘Celsius Impairment Forms’). They provide details of the impairment to the system, including the location, extent and duration of the impairment, and specify measures that the occupier can put in place during the impairment.

19Celsius did not provide the forms to Domain, nor did it provide written notification of any alternative fire safety measures that Seahaven could implement while the fire safety systems were impaired.

20Richard Bradley, Celsius' fire sprinkler manager for Victoria, states that the Celsius Impairment Forms were only used when the site Celsius was working at did not have its own fire impairment procedures in place. This was because those procedures may be site specific.

Domain actions prior to the fire safety systems maintenance and shutdown

21On 15 January 2014, Ms Broms sent out a memorandum via another staff member to staff via nurses’ communication books and posted in the staff room to notify them that the Celsius team would be working on the fire safety systems. The memorandum was posted in the staff room and a copy was left in each of the three staff nursing areas. A number of staff members who were working at the Seahaven facility on the day of the fire state that they did not see the memorandum and were not aware that the sprinklers and alarms were off.

22Ms Broms gave evidence that she issued a notice to staff warning that the alarm system was impaired and urging them to be extra vigilant in identifying any fire. She stated in her evidence that she made sure people understood that the sprinklers were off by way of informal briefing at handovers that happened ‘constantly’. Ms Broms did not implement a ‘fire watch’ because the facility was fully staffed, the impairment was only for a short time and she had alerted staff to be vigilant both in writing and verbally. Ms Broms did not conduct a written risk assessment but that was the process she went through when determining what additional measures to put in place during the period of impairment.

23Seahaven was fully staffed during 15 and 16 January 2014, however there was not a dedicated fire watch person in place.

Isolation of fire safety systems by Celsius tradesmen on 16 January 2014

24On 16 January 2014, the Celsius plumbers, Mr Mounga and Mr Campbell, arrived at the Seahaven Facility between about 7:00 am and 7:15 am.

25There were no staff around when they arrived. On arrival, Mr Mounga followed a similar procedure to the previous day. He isolated the sprinkler and alarm system using the FIP and inserted the ASE key into the FIP.

26The Celsius plumbers also disabled the sprinkler system that they were working on. The ASE key was left inserted while they performed their work.

27After isolating the fire safety systems, the plumbers then worked on installing sprinkler heads in the coolers, freezer and kitchen of the Seahaven Facility. This work took about one or two hours.

28They had completed their work and commenced recharging the sprinkler system at the time that the fire was discovered.

The fire and its aftermath

29On 16 January 2014 a fire started in room 17 of the Nautilus wing at Seahaven (the room 17 smoke detector was the first to activate, at 9:10 am). The cause of this fire is unknown but was unrelated to any work performed by Celsius. At the time the fire broke out, the external alarms were impaired as was the sprinkler system, as the Celsius plumbers were just completing their work.

30Smoke was observed by Seahaven staff and the fire brigade notified by telephone. This call is logged at 9:14:13 am.

31The last of the smoke detectors to be activated was at 9:15 am.

32Ms Broms went to the FIP and states that she pulled the ASE key from the FIP and pressed some buttons on the FIP to get the fire alarm(s) to sound. The removal of the key is logged at 9:15:30 am, causing a further notification to the Fire Brigade at 9:15:38 am.

33Separate from but running in line with the discovery of the smoke and fire and Ms Broms attending the FIP, staff in the Nautilus wing commenced to gather the occupants of the Nautilus wing and evacuate them. This ultimately culminated in the evacuation of residents and staff to the front car park of Seahaven Facility. Various staff members assisted in evacuating people. The staff were trained to evacuate residents of the nursing home in accordance with the Domain emergency evacuation systems. Those systems included moving the most mobile residents first and the least mobile last.

34The sprinklers activated and extinguished the fire prior to the fire brigade arriving, the first of which was the Inverloch pumper, at 9.23 am. Ms Broms states that the sprinklers started quickly after the alarm started. The Celsius plumbers had already commenced repressurising the sprinkler system prior to becoming aware of the fire. It takes a period of time to repressurise the system and there are risks if the system is pressurized too quickly.

35The alarm monitoring company’s records for the FIP for the Seahaven Facility show that the FIP was isolated between 7:22 am and 9:15 am on 16 January 2014.

36Four aged care residents were hospitalised due to smoke inhalation (Mr Eavis, Ms Oldham, Patricia Richter and Audrey Foat). Mr Eavis died the same day.

37The cause of Mr Eavis’ death was the effects of smoke inhalation from the fire in the context of significant cardiovascular disease.

38Staff members from the Seahaven Facility, Ms Dobie and Ms McKenzie, also went to hospital for treatment.

39A police investigation into the death of Mr Eavis was subsequently conducted.

Nature and gravity of the offending

40The particulars of the charge to which Celsius have pleaded guilty state that it was reasonably practicable to reduce the risk to residents and staff while the fire safety system was impaired, by providing notice in writing as to the extent of the duration of the impairment and the alternative fire safety measures that the aged care facility could have implemented during the time of the impairment. The persons exposed to the identified risk were Mr Eavis and others.

41I note however that the Australian Standard, while requiring notification of the duration of the impairment and the alternative safety arrangements that could be implemented, did not specify that the notification must be in writing, nor is there such an industry requirement or standard.

42The fire safety measures that could have been notified in writing by Celsius to the Seahaven Facility in order to reduce the risk are outlined in the prosecution opening as follows:

a)Advise building manager and Fire Brigade of impairment of system, including the nature and expected duration of the impairment;

b)Advise building manager to consider notifying the insurer;

c)Advise building manager to check fire hose reels and fire extinguishers are available, that all fire extinguishing appliances are to be held in special readiness for immediate use, and that there should be an adequate number of trained personnel available to use them; and

d)If there is an impairment, advise the building manager to consider putting in place a watch person for non-working hours.

43However, while the exposure of vulnerable residents to risk by fire or smoke inhalation could have been reduced by providing notice as particularised, the seriousness of the offending is not necessarily gauged by the fact of a death or serious injury. As noted in Dotmar Epp Pty Ltd v The Queen:[1]

It is the extent of the failure to ensure that employees are not exposed to risk to their health and safety which determines the objective gravity of the offence. The consequences of the failure generally do not. That is not to say that the fact of death or injury occurring is necessarily irrelevant. The occurrence of an accident, resulting in death or injury of a particular kind, may inform an assessment of, first, the existence of the risk, and, secondly, the nature and seriousness of that risk.

[1] [2015] VSCA 241, [23].

44Further, in assessing the gravity of a breach, the Court of Appeal in DPP v Frewstal Pty Ltd[2] summarised the guiding principles in sentencing such matters as follows:

(a)   First, unlike cases of unlawful homicide, the occurrence of death or serious injury is not an element of the offences charged. An accused is punished according to the gravity of the breach of duty owed under the OHSA, not according to the result or consequences of the breach.

(b)   Secondly, the gravity of the breach is measured by two factors: 1) the seriousness of the breach itself (that is, the extent to which the defendant has departed from its statutory duty); and 2) the extent of the risk of death or serious injury which might result from the breach.

(c)   Thirdly, an assessment of the extent of the risk itself involves consideration of two factors: 1)  the likelihood of the occurrence of an event as a result of the breach (such as the event that occurred in the particular case) endangering the safety of employees or others; and 2) the potential gravity of the consequence of such an event (in particular, whether there is a risk of death or serious injury).

(d)   Fourthly, the fact that the breach in the particular case resulted in death is relevant only in the sense that it might manifest or demonstrate the degree of seriousness of the relevant threat to health or safety resulting from the breach.

[2] (2015) 47 VR 660, [127], Priest and Kaye JJA.

45In the circumstances of this case both the prosecution and defence agree that the breach of duty falls at the low end of seriousness of contravention of this kind. I further note that the prosecution submit that there is no evidence to suggest that the death of Mr Eavis was caused by the breach.

46Taking into account the circumstances of the case, the submissions of the parties and the relevant principles summarised above, I accept that in this instance the breach of duty does fall at the low end.

Circumstances of the defendant company

47Celsius commenced operating in 2004 as a business and became incorporated in 2007. The sole director is Karen Hunt. Her husband Stephen Birch is a former director of Celsius and both he and Ms Hunt have worked in the fire safety services industry since 1982. Ms Hunt was a member of the fire equipment maintenance technical committee. Mr Birch is a member of various Australian Standards committees and has written standards for fire assessment equipment.

48Celsius commenced operations in New South Wales, extending its operations to Victoria in 2007. In general terms, Celsius provided fire service maintenance, inspections and testing services to its clients. It’s services included maintaining fire systems and equipment to Australian Standards and state legislation. Celsius provided maintenance services to government and commercial clients including government departments, hospitals, aged care facilities and commercial premises.

49On 1 July 2019, Celsius sold its assets and ceased operating. It has remained a registered entity for the purposes of this prosecution. Ms Hunt has since retired.

Sentencing considerations

50Mr Livermore SC, who appeared on behalf of Celsius, outlined a number of matters in mitigation.

51First and foremost is the plea of guilty. This matter has had a long procedural history including pretrial examinations in this court. The matter came before me for a sentence indication hearing on 24 November 2023 and on the same day, following the indication, the company was arraigned and pleaded guilty. As such the plea cannot be said to have been entered at the earliest opportunity.

52Nonetheless, the plea has considerable utilitarian value as it has spared the resources and time required for a trial, in this case estimated to be 20 days. The evidence at trial would have involved a degree of complexity requiring expert evidence. I therefore take the company’s willingness to facilitate the course of justice into account. I also take into account that through the investigation phase the company cooperated with investigators and provided information in a timely manner.

53In cases involving breaches of the OHSA, general deterrence is the predominant sentencing consideration. As noted in DPP v Vibro-Pile (Aust) Pty Ltd: [3]

The sentences imposed need to draw attention to the importance of workplace safety, and to send a message to employers that failure to eliminate or mitigate risks will attract significant punishment.

[3] DPP v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676 at [233].

54As to specific deterrence, I take into account that the company comes before the court with no prior convictions and nothing subsequent. It has now ceased operating altogether. As such specific deterrence need not be given weight in the circumstances.

55It was submitted by Mr Livermore that in the circumstances of the case, including the nature of the offence being a low level breach, the fact that the company has no prior or subsequent safety breaches and the general history of the company, the court should exercise its discretion and not record a conviction. The prosecution did not press for a conviction, submitting it is a matter for the court.

56Finally, the prosecution and the defendant company provided the court with comparable cases. While it is often the case that only limited assistance can be derived from comparing other cases, where possible to make comparisons, I have taken these cases into account.

Sentence

57In the circumstances Celsius Fire Services Pty Ltd is sentenced as follows:

58On Charge 1, failing to ensure, as a person who had to an extent the management or control of a workplace that the workplace was safe and without risk to health, Celsius Fire Services Pty Ltd, without conviction is fined $35,000.

59Pursuant to s 6AAA of the Sentencing Act 1991, if not for the plea of guilty, I would have fined the company $60,000 with conviction.