Director of Public Prosecutions v De Kort

[2019] VCC 291

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT BALLARAT
CRIMINAL JURISDICTION

CR 18-02423

DIRECTOR OF PUBLIC PROSECUTIONS

v

DE KORT ENTERPRISES PTY LTD

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Ballarat
DATE OF HEARING:	26 February 2019
DATE OF SENTENCE:	14 March 2019
CASE MAY BE CITED AS:	DPP v De Kort
MEDIUM NEUTRAL CITATION:	[2019] VCC 291

REASONS FOR SENTENCE
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Subject: Occupation Health & Safety Act 2004
Sentence: Fine of $150,000

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A.J. Palmer SC
For the Accused	Mr A. Weekes

HIS HONOUR: 

1De Kort Enterprises Pty Ltd, which for convenience I will hereafter refer to as "De Kort", has pleaded guilty to one charge of failing to ensure that persons other than employees were not exposed to risks. 

2The charge is laid pursuant to s.23(1) of the Occupational Health and Safety Act 2004, which imposes a statutory obligation on an employer to ensure that so far as is reasonably practicable that persons other than employees are not exposed to risks to their health or safety arising from the conduct of the undertaking or business of the employer.

3De Kort is a body corporate and the charge arises from the conduct of its business of a swimming school in Wendouree known as the "Swim and Survival Academy", which I will hereafter refer to as "the academy".  The maximum penalty for this offence is a monetary one of 9000 penalty units, which equates to nearly $1.4m. 

4The victim of this offending was not an employee but a 12-year-old Year 6 school student who was having a swimming lesson at the academy.  She suffered catastrophic injury rendering her a quadriplegic after she was directed to dive into water at the academy that was too shallow.

5The circumstances of the offending are contained in a prosecution opening that was tendered in evidence and read in open court by senior counsel for the prosecution, Mr Palmer SC.  Counsel for De Kort, Mr O'Neill, accepted that the prosecution summary was accurate and forms a proper basis upon which I can proceed to pass sentence.  In those circumstances it is not necessary that I here set out in detail all of the circumstances of the offending and do so only in an abbreviated way.  These sentencing remarks should however be read in conjunction with what is contained in the prosecution summary.

6On 1 November 2016 the victim was one of a number of school students having a swimming lesson at the Academy.  The swimming lesson was being conducted by a member of the academy staff.  The lesson was being conducted in the learner pool, which is one of three pools in the academy complex.  The depth of water in this pool varied between 1175 and 1367 millimetres at the northern end.  At a distance out from the northern end of 2.7 metres the depth of water varied between 1215 millimetres and 1407 millimetres

7Various recognised bodies associated with swimming publish guidelines or recommendations about prudent depths of water necessary for teaching diving skills.  These seem to recommend a prudent depth of 2 metres of water for standing diving to a minimum of 1.5 metres.  The depth of water in the learner pool was below the minimum recommended and well below a prudent depth of 2 metres. 

8The section of the Act that proscribes this offence, as I said earlier, required De Kort as the operator of the academy, so far as was reasonably practicable, to ensure that the victim was not exposed to risks to her health, or safety arising from the conduct of swimming and diving instruction at the academy.  That required an assessment of the depth of the water at the northern end of the learner pool, especially whether or not the depth of water was adequate having regard to the physical attributes of each student having swimming and diving lessons.

9The prosecution tendered video evidence of this tragic event where the victim was injured.  She can be seen to be swimming in the learner pool to the northern end where she gets out of the pool and lines up last behind a number of other students, each of whom dive back into the water before her.  When the victim dived into the northern end of the learner pool she went straight down hitting her head on the tiled floor of the learner pool.  As I said, she sadly suffered spinal injury rendering her quadriplegic for life. 

10There was no assessment of the risk to the victim from diving at the northern end of the learner pool.  As can be seen on the video, and as referred to in the summary, the victim was much taller and heavier than an average girl of her age.  On any view, if a proper assessment of the risk to the victim's health and safety had been done De Kort should have ensured that she did not have diving lessons at the northern end of the learner pool where the average depth of water was below 1.5 metres.  I was told and accept that many thousands of dives have previously been conducted in the learner pool and this was the first incident resulting in injury.  I accept that to have been the case.  But the law does not permit of a one size fits all approach.  What seems to have been lacking here was any realisation that the victim, being at the time 23 centimetres taller and 46 kilograms heavier than an average girl of her age, should not have been instructed to dive into water less than 1.5 metres' depth, because it would pose a risk to her safety and health.  The video shows that at the time of the offence there were a number of students in the academy.  It would have been reasonably practicable to simply move the diving part of the lesson to a deeper pool, the long pool for example, but that was not done.  That could easily have been done at no cost to De Kort.

11That is acknowledged by De Kort in the particulars to the charge that it has pleaded guilty to, especially particulars 5 and 6.

12In my judgment this is a serious example of what is a serious offence.  The risks of diving into shallow water are regrettably well known.  But Grade 6 school children cannot be expected to fully understand that risk, and so the academy had to take all reasonably practicable steps to protect them.  The purpose of the legislation is to protect persons from injury.  In cases such as this the sentence imposed must properly reflect proper application of the principle of general deterrence and the sentence must properly denunciate the offending.

13I accepted into evidence victim impact statements from the parents of the victim.  They each provide to the court powerful and moving evidence of the impact which this offending has had on their lives, the lives of the victim and her brother.  The impact is immense, touching upon almost every aspect of their everyday life.  In passing sentence I have taken the victim impact statements into account as I must.

14De Kort pleaded guilty to the charge and it is accepted that it did so at the earliest opportunity.  That is to its credit.  By pleading guilty to the charge at the earliest opportunity De Kort has saved the time and costs of a trial and, importantly, it has saved the victim from having to give evidence about events that have so profoundly affected the rest of her life and the lives of the members of her family, which have been turned upside down by this tragedy.  The plea of guilty evidences true remorse and demonstrates a willingness to advance the course of justice.  Importantly, it also acknowledges De Kort's acceptance of responsibility for the offending.  In passing sentence I have taken all of this into account as I must and I have imposed a fine lower than that which I would have imposed had De Kort fallen for sentence after a contested trial.

15At the plea hearing Mr O'Neill on behalf of the directors of De Kort told me of their sincere regret at the tragic injury suffered by the victim and the consequences for her and her family for life.  I accept that they are truly sorry for the offending and their role in it.  I received into evidence a folder of material tendered by Mr O'Neill.  In that material is a statement made by Rob and Julie De Kort, the two directors of De Kort.  In that statement they both express their sincere regret for what has happened and they speak of the steps they have taken to ensure that a similar incident does not happen again.  I accept that De Kort is genuinely remorseful for this offence.  In the material there are many references from people familiar with the business of De Kort and who are known to its directors.  Those references further evidence remorse.  They also address the high standards that De Kort has put in place to train its staff to ensure that such an incident does not recur.

16De Kort has no prior convictions and there is nothing pending.  Having read all of the references from business associates, former and existing staff and customers of the academy, being parents of students past and present, I have formed the opinion that De Kort is a good corporate citizen.  I regard its prospects of offending again in this way as remote.

17Both the prosecution and the defence referred me to what were submitted to be comparable cases of offending.  The prosecution submitted that for the purposes of having regard to current sentencing practices, the decision of Judge Cohen in DPP v WCA (Vic) Pty Ltd [2013] VCC 980 is a suitable comparator case. The defence referred me to two cases. One case was Time to Start also involving a swimming school, and the other case involved the State Emergency Services.  Both cases were decided in the Magistrates' Court.  I accept the prosecution submissions that the most comparable case for my purposes is the WCA case.

18In sentencing a body corporate by the imposition of a fine I must consider the financial capacity of the company.  I was told and accept that De Kort is a trustee company controlled by Rob and Julie De Kort.  The company employees their two children in the business.  There are a total of 50 employees.  De Kort is the trustee of the De Kort Family Trust which operates the business of the academy.  It is a $2 company.  I was provided in evidence with the balance sheet of the trust as at 25 February 2019.  It shows the trust has net assets of only $8,935.00.  The financial material does not permit me to form firm conclusions about the ability of De Kort to pay a fine.  The balance sheet does not, for example, attempt to value the business of the company.  The document which reports the tax profit for the years 2016 to 2018 shows that profits per year on average exceed around $200,000, but there is no evidence of all of the expenses and there is no evidence pointing to the level of gross sales or income. 

19One expense not shown is rent.  I was told that the facility where De Kort operates the academy is owned by another company to which De Kort pays rent.  That is a related company to De Kort sharing common shareholders and directors.  I do not know what the financial arrangements are between De Kort and the company that owns the land.  I have concluded that the business of De Kort is a successful business capable of making appropriate arrangements to pay a fine in the amount which in my view is appropriate having regard to the seriousness of this offence.

20As I said earlier, this is a serious example of a serious offence.  General deterrence and denunciation of the offending demand the imposition of a significant fine.

21On the charge of failing to ensure that persons other than employees were not exposed to risks De Kort is convicted and sentenced to pay a fine of $150,000.

22I will grant a stay of three months on the payment of the fine.

23Had it not been for the plea of guilty to the charge I would have imposed a fine of $250,000 with conviction.

24Are there any questions arising out of that?

25COUNSEL:  No, Your Honour.

26HIS HONOUR:  Very well.  Adjourn the court till 10 o'clock.

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