Director of Public Prosecutions v Department of Health and Human Services

[2018] VCC 886

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-00999

DIRECTOR OF PUBLIC PROSECUTIONS

v

THE CROWN IN THE RIGHT OF THE STATE OF VICTORIA
(DEPARTMENT OF HEALTH AND HUMAN SERVICES)

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JUDGE:	HIS HONOUR JUDGE WRAIGHT
WHERE HELD:	Melbourne
DATE OF HEARING:	4 June 2018
DATE OF SENTENCE:	18 June 2018
CASE MAY BE CITED AS:	DPP v Department of Health and Human Services
MEDIUM NEUTRAL CITATION:	[2018] VCC 886

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J Gullaci	OPP
For the Accused	Mr R Taylor	Norton Rose Fulbright

HIS HONOUR:

Introduction

1. The Crown in the Right of the State of Victoria (Department of Health and Human Services) (the Department) have pleaded guilty to one charge of failing to provide information to employees as was necessary to enable employees to perform their work in a way that was safe and without risks to health, contrary to s 21(1) and 2(e) of the Occupational Health and Safety Act 2004 (the Act). 

2. The particulars of the offence are as follows: 

   That the Department:

   a.Failed to provide to employees such information as was necessary to ensure that sufficient information regarding a resident’s risk of violence (including sexual violence) was communicated to all staff working directly with a resident;

   b.Exposed persons to health and safety risks, by virtue of this failure, including but not limited to the victim;

   c.Exposed the victim, and other females similarly employed, to health and safety risks because of this failure, namely the risk of being seriously injured due to a physical and/or sexual assault committed by a resident.

   d.The following information was necessary:

   i.Ensuring that a resident’s risk of sexual violence was incorporated into key documents such as the Occupational and Violence Risk Assessment and Management Tool (OVRAMAT).

3. The Accused in this matter has been directly indicted in the County Court.

Circumstances of the offence

1. A Summary of Prosecution Opening was tendered on the plea and may be summarised as follows: 

2. In September 2011, WorkSafe commenced an investigation into an incident that occurred on 9 June 2011 at the Disability Forensic Assessment and Treatment Service Centre (DFATS), Fairfield.

3. The incident involved a 25 year old Disability Development and Support Officer who was sexually assaulted by John Dymond, a resident of that facility.

4. DHHS funds and manages the DFATS Centre. The DFATS Centre was established in 1993 and houses residents with an intellectual disability, most of whom have committed sexual offences. The residents are subject to a legal mandate imposed by either a Victorian Court or the Adult Parole Board.

5. The victim was a direct employee of the Department and had performed that role for a period of approximately four years prior to this incident. 

6. Mr Dymond commenced residency in the Centre in or around May 2011 under a court imposed Residential Treatment Order. This was after being assessed as ‘suitable’ for the program. Mr Dymond was a convicted sex offender and had prior convictions including for indecent assault.

7. On 9 June 2011, the victim was working alone in the unit in which Mr Dymond was a resident. Mr Dymond grabbed the victim from behind without warning and dragged her towards the bathroom area.

8. A struggle ensued during which the victim was forced onto her back on the floor. 
   Mr Dymond attempted to remove her clothing and touch her genitalia. During this time, the victim was screaming, fighting, and attempting to activate her duress alarm.

9. Staff working in adjacent units intervened a short time later after being alerted by the victim screaming. Mr Dymond was restrained and subsequently interviewed by Police. 

10. Mr Dymond was prosecuted for the acts he committed against the victim. He was charged with Intentionally Causing Injury and Indecent Assault. He pleaded guilty to both charges and was imprisoned for 5 years. I was provided, and have read the sentencing remarks in relation to that prosecution, including the victim impact statement of the victim.

Investigation

1. As part of the investigation into this matter documents were obtained disclosing that prior to this incident, the Department possessed information and knowledge that Mr Dymond:

   ·Had previously formed an attachment to female staff;

   ·Had previously assaulted a female psychologist;

   ·Had previously been assessed as representing a high and ongoing risk of sexual abuse to vulnerable adult females with his likelihood of reoffending double that of the average male sexual offender; 

   ·Having previously disclosed that he had offence-specific thoughts and thoughts of physical harm towards a female clinician, and that it was recommended that treating clinicians were mindful of this risk and implement appropriate risk management strategies; and

   ·Had a pre-sentence report completed which stated that Mr Dymond experiences difficulty controlling his sexual impulses in a secure environment.

2. The OVRAMAT relating to Mr Dymond was incomplete at the time of the incident. The document did not contain information relating to a prior attack, alleged offence related thoughts towards female staff, and Mr Dymond's tendency to form unhealthy attachments to female staff.

3. All Disability Development and Support Officers stated that they had no knowledge of any of this information. They claimed that had they been aware of such information, a range of measures would have been implemented. These measures included (amongst others) that female staff would not be able to work alone with Mr Dymond and that extra staff would be rostered on duty.

4. An ‘adverse event’ investigation was commissioned by the Department following the incident. The investigation was undertaken by the Victorian Institute of Forensic Mental Health (ForensiCare) who found that the Department had complied with all its existing policies and procedures and that staff numbers (ratios) at the time of the incident conformed with existing DHHS policy.

5. Whilst compliance with existing policies and procedures was achieved, ForensiCare was of the opinion that the incident occurred because of the absence of policies and procedures relating to the assessment, management and communication of risk. It also found that the OVRAMAT did not accurately capture the nature of the risk.  ForensiCare recommended the introduction of various new policies and procedures.  DHHS accepted the recommendation and voluntarily implemented new policies and procedures.

6. In relation to the charge on the indictment, it is clear that there has been a significant delay between the incident that occurred on 9 June 2011 and the filing of the indictment in this matter in 2017. I was informed that WorkSafe initially investigated this incident and declined to lay charges. The Director of Public Prosecutions reviewed the matter sometime later and ultimately an indictment was filed directly in this court in 2017.

The objective seriousness of the offence

1. The way the charge is structured is that the health and safety risks that are identified in the particular charge of failing to provide necessary information, could have been controlled by ensuring that a resident’s risk of sexual violence was incorporated into key documents such as the OVRAMAT.

2. The relevant OVRAMAT in this instance relating to Mr Dymond was tendered on the plea. Within that document there are specific sections where relevant information could have been included. The specific information in relation to previously identified risks in relation to Mr Dymond, are very detailed and clearly should have been communicated to employees working directly with him. It would seem that despite having the tool of the OVRAMAT as the vehicle to do this, the information was simply not communicated.  I was not given any real explanation as to why or how this occurred.

3. Mr Gullaci who appeared on behalf of the Director of Public Prosecutions, highlighted the guiding principles in relation to assessing the gravity of an offence in relation to Occupational Health and Safety cases as summarised in DPP v Frewstal[1] per  Priest and Kaye JJA as follows:

   ·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.

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

   ·Thirdly, an assessment of the extent of the risk itself involves consideration of two factors – 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, the potential gravity of the consequence of such an event (in particular, whether there is a risk of death or serious injury).

   ·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.

   [1] (2015) 47 VR 660, [127].

4. While acknowledging that there are clearly inherent risks in the work the Department undertakes in this area, nonetheless Mr Gullaci submitted that the offence before the court represents a serious breach of the Act. He submitted that the Department departed significantly from their statutory duty to provide a working environment that was safe and without risk to health. Specifically, the risk of an employee being seriously injured due to a physical and/or sexual assault committed by a resident being a real and ever present one given the environment in which they worked.

5. In my view that submission is correct. This was an environment which by its nature, gives rise to the obvious risks identified in this case. Here however, where there was specific and relevant information about the very real risks associated with Mr Dymond, this information was simply not conveyed via any established system or in any way at all.

6. Mr Gullaci submitted that the offending should be viewed as a mid-range example of this type of offending. In my view there is always risks in trying to assess the seriousness of an offence by placing it within a range. Rather, for the reasons articulated above, in all the circumstances in my view the offence represents a serious example of an offence pursuant to section 21(2)(e) of the Act.

7. I acknowledge however as is the case in all Occupational Health and Safety offences, when assessing the seriousness of the breach, it is the nature of the breach and not the consequences which must be kept sharply in focus.

Sentencing considerations

1. Mr Taylor who appeared on behalf of the Department, submitted in all the circumstances that the plea of guilty should be considered as an early one. I accept that once the Director of Public Prosecutions had directly filed the indictment, the matter was negotiated and resolved. As such, despite the unique procedural circumstances related to this prosecution, in my view the plea of guilty should be considered as an early plea. As such it has avoided the need for a trial and in particular the need for witnesses to have to give evidence and to relive the event.

2. It was submitted that there has been a significant amount of work done in response to the incident. While Mr Taylor did not tender any written documentation to this effect, I accept his submission that there has been numerous independent reviews and work done in order to prevent a similar breakdown in communication in the future. Further, a number of training programs have been introduced in order to predict and assess challenging and aggressive behaviours in relation to the type of clients housed by this and other facilities.

3. It was also submitted that there has been a significant amount of money injected into this area in order to prevent this type of risk arising again. Significantly, I was told that on reception of a client into a facility like the one involved in this instance, all the information is entered into the system and is easily accessible by staff which it seems was the very basic breakdown that occurred on this occasion.

4. The work that is undertaken by the Department incorporates a number of very challenging environments such as the one here. I acknowledge that for the individual employees that work directly with clients such as Mr Dymond, the work is very difficult and very demanding and that in the circumstances they do an admirable job. That said, because of the very nature of the facility and the clients that are housed in such facilities, the Department should be acutely aware of what is required in order to protect their employees from exposure to risk.

5. Mr Gullaci highlighted that general deterrence is the predominant sentencing consideration in offending of this type which is undoubtedly true. He further submitted that specific deterrence has some role, however given the significant delay, the plea of guilty and the lack of any prior history, in my view specific deterrence carries little weight in the sentencing equation.

6. This incident occurred in June 2011. It was initially investigated by WorkSafe and no prosecution was pursued. Ultimately, as noted above, this matter was directly presented in this court some years later. As such, there has been a significant delay in this matter reaching its conclusion. The delay is in no way attributable to the Department and therefore, in my view, delay should be given weight in the sentencing discretion. Further, in the time that the delay has unfolded, the Department has not sat on its hands but has continued to evolve and develop its policies and procedures in this area in order to further reduce any risks that arise. Also in that time there has been no further offending.

7. It was submitted by the prosecution, fairly in my view, that in all the circumstances, taking into account the significant delay together with the other matters in mitigation, a non-conviction disposition is within range. It was also submitted that an adjourned undertaking together with a condition that the Department makes payment to a relevant charitable organisation would be an appropriate way to dispose of this matter.  In all the circumstances I accept that this is the most appropriate way to bring this matter to a conclusion.

Sentence

1. On charge 1 on the indictment, failing to provide information to employees as was necessary to perform their work in a way that was safe and without risks to health, without conviction the Department will be placed on an adjourned undertaking for a period of 12 months. 

2. The adjourned undertaking will have the standard conditions pursuant to s 75(2) of the Sentencing Act 1991 together with a special condition.

3. The special condition of the adjourned undertaking is that the Department is to make a contribution in the sum of $50,000 to Djirra (previously known as the Aboriginal Family Violence Prevention & Legal Service Victoria). Djirra is a Victorian based organisation run by Aboriginal people and offers practical support to Aboriginal women who are experiencing family violence or have in the past.