Director of Public Prosecutions v Haileybury

[2022] VCC 166

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 21-00926

DIRECTOR OF PUBLIC PROSECUTIONS

v

HAILEYBURY

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:	24 November 2021
DATE OF SENTENCE:	21 February 2022
CASE MAY BE CITED AS:	DPP v Haileybury
MEDIUM NEUTRAL CITATION:	[2022] VCC 166

REASONS FOR SENTENCE

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Subject:               Criminal Law - Sentence upon plea of guilty.

Catchwords:        Failure to provide or maintain safe systems of work - Failure to provide

information, instruction, training or supervision – No prior convictions -

Failure to recognise the true risks and put in place adequate safeguards -         

Breach resulted in death – Early plea of guilty during Covid-19

Legislation Cited: Occupational Health and Safety Act 2004 (Vic).

Cases Cited:       Amcor [2005] VSCA 219; Profab [2000] 49 NSWLR 700; Yarra Valley

Water [2006] VSCA 279; DPP v Redback [2017] VCC 1602; DPP v

Frewstal [2015] VSCA 266; Dotmar v The Queen [2015] VSCA 241;

Holmes v RE Spence & Co Pty Ltd (1992) 5 VIR 119; DPP v Redback

Tree Services [2017] VCC 1602.

Sentence:        Convicted and Fined $140,000.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Matthews	Ms S. Denham
For the Accused	Mr A. Palmer	Mr A. Brown

HIS HONOUR:

1Haileybury, an Australian Public Company and Registered Charity, operate private schools at several Melbourne locations, including a campus at High Street, in Berwick. 

2On 14 February 2018, Mr Kym Page who was employed as a grounds person at the campus, undertook work which involved dealing with a large branch from a large gum tree on the school property, when he was struck by the branch and he tragically died as a result of head injuries. 

3A consequent investigation by WorkSafe detected breaches of the duties Haileybury owed under s21 of the Occupational Health and Safety Act 2004. The breaches related to failure with respect to providing or maintaining safe systems of work contrary to ss21(1) and sub-s.(2)(a) and failure with respect to provision of information and instructional training to its employees contrary to ss21(1) and 21(2)(e) of the Act. 

4The indictment.  The particulars in relation to Charge 1 identified that there was a risk of serious injury or death to employees from being struck by a tree branch or part thereof whilst cutting the branch with a chainsaw, and this risk was increased if employees attempted to undertake the task without the required expertise and/or personal protective equipment.  It was reasonably practicable for Haileybury to reduce that risk by providing and maintaining a system of work, determining whether the branches of trees should be cut by an employee or by an external contractor, and if by an employee, what measures should be taken to reduce the risk referred to. The indictment then set out the steps in the system of work which Haileybury failed to provide and maintain. 

5The second charge particularised that it was necessary for Haileybury to inform employees that there was a risk associated with cutting a branch from a tree with a chainsaw being the unpredictable movement of the branch due to factors such as compression and tension within the tree and Haileybury failed to provide that information.  

6On 24 November 2021, Haileybury pleaded guilty in this court to the two charges laid under the above sections of the Act. 

7There were no eyewitnesses as to the circumstances leading to Mr Page's death and despite some material available to the court in depositions which include opinions from expert witnesses and photographs of the scene of the incident, an accurate reconstruction of what took place is an impossible task for the court to complete without some measure of speculation which I will not undertake.

8However, a number of relevant factual matters are clear from the circumstances and particularly by way of Haileybury's plea, the direct relationship between the admitted failures and Mr Page's death. 

9On the morning of 14 February 2018, Mr Page had noticed a large gum? with a branch hanging from it, resting on the ground and still attached to some degree, to its trunk.  This was in an area along the creek which runs along the boundary of the school.  The branch was large and a long branch, wedged into the ground according to Mr Ben Carter who was Mr Page's co-worker and who was with him that morning when the observations of the trees were made by them.  The tree was in a, 'out-of-bounds' area for students and staff.  Overnight strong winds had impacted the vegetation around the school, bringing down  leaves and branches around the campus, lifting some roofing as well.  The conditions that morning were still windy.

10Not long after they noticed the tree, Mr Carter and Mr Page spoke to Mr Dale Goodman, the Buildings and Grounds Supervisor at Haileybury Berwick campus.  He was within Stephen West, the Grounds' Manager.  Each of the persons just mentioned gave evidence of compulsory examinations and their evidence has some relevance to the charges before the court.

11Mr Carter said he had a Certificate III in Sports Management and that included a week of Arborist's course which included tree-lopping, maintenance of chainsaws and risk associated with trees.  That course was undertaken while he worked at Haileybury. 

12He said the risks he learnt about meant you should always work in pairs and use a qualified Arborist if there was a high tree.  It was mainly about handling a chainsaw to prune and remove branches. Their job was to look after the Sportsground, tidying debris and cutting the rough.  He had been at Berwick for just over a year. 

13The induction program covered PPE, but he had done no tree-work or used a chainsaw.  He only used a handsaw to cut branches off trees.  He said that if he came across an issue with a tree he would make it safe including bollards and tape around the area and contact Mr Goodman.  He had not seen other team members use a chainsaw, maybe once.  After speaking to Dale Goodman, he would advise the best course of action.  He had not seen Dale use any documents to make an assessment.  He thought the tree in question was too big for them to deal with and Mr Page agreed. When they spoke to Mr Goodman, they asked,

'What would you like us to do?' 

14He could not recall exactly what Mr Goodman said, but it was something like that he – Dale – would have a look and advise us, but to leave it alone.  It was still very windy.  Mr Goodman said he most likely would contact an arborist.  At the lunchtime break Mr Goodman indicated that he was going to call an Arborist and there was no discussion further.

15Mr Carter said he had never seen an Arbor Plan document and never read the tree inventory.  No one had ever told him anything about particular trees and risks associated with them.  He had never been told to stay away from a particular tree or area and he could not recall a staff monthly meeting which minutes appears in the depositions at p659 on 15 November 2017 which noted, 'Tree branch down at creek.' 

16He said there were no hard hats at Haileybury at that time in February 2018.  He said there had not been any discussion about risks associated with trees at any OH&S meetings which were held monthly and that he had never been given any information or instructional training about the risk associated with tree work in any other context of work.  In terms of the tree work, he was to do as part of his role, he had never received information, instruction or training about work he should or should not do.  A question was asked:

'Were you ever told in what circumstances you should talk to Dale Goodman about whether you could or could not do work on a tree?'

17and he answered:

'Yes.  Dale spoke to us and basically said if we felt that it was unsafe to tend to a branch, or it was higher than head height, we'd speak to him about it.' 

18He was not told about what risks he might think about when determining if it was safe or not.  After the incident, the system of work changed, he said, and no chainsaws were used.

19Stephen West was the Ground Manager at Haileybury Keysborough and oversees other campuses.  He said he helped out Mr Goodman but said he did not have anything to do with trees at Berwick and did not discuss them with Mr Goodman.  He said he was aware of the Arbor Plan and met with the writers' annually.  He said at the monthly OH&S meeting at Haileybury, policies and procedures are discussed and at times Health and Safety issues related to trees were discussed.  If there was an issue with a tree, they were fenced off by orange bollards and rope to make it safe.  He said that even though the staff know of the Arbor Plan it had never been raised at an OH&S meeting.

20He recalled being at Berwick on the day of the incident and a meeting during which a tree was mentioned concerning a large limb that was down or hanging, still in the tree, to which Mr Goodman had said:

'Just leave it and we will get Tree Wise Men.'

21The tree was around the 'out-of-bounds' area near the creek.  He said Keysborough had PPE equipment including hard hats before the incident, but they were not to be used with a chainsaw. 

22As regards information, training and instruction about the risk associated with tree work, Mr West said the system in place at Keysborough had not changed as of the date of the compulsory examination.  Small branches of one or two metres, would be cut with a handsaw.  Anything 'large' was not to be touched.  You would only be spoken to about this work if it was, 'significant.'  He could not recall any discussion about tree work being discussed at the Corporate Services meeting. 

23Mr Dale Goodman was also examined.  He was the Building and Grounds Supervisor at Berwick and had been there for 14 years having worked for Haileybury for some 24 years. 

24He lived on site and looked after security and cleaning as well for the 78-acre school property.  His training was in Turf Management but had done a Diploma of Management as well.  A module of his apprenticeship concerned tree work at basic level.  He regarded his team of four men to have minimal experience in tree work with Mr Page having the most experience in chainsaw work.  Mr Goodman was responsible for engaging, Tree Wise Men, an external contractor to do any tree work on-call.  He said ArborSafe had delivered an Arbor Plan to manage the, 'tree system' updating the Register of Trees and detailing required works annually.  He would decide what work was internal or externally contracted.  The determination as to whether the work was too big was, he said, based on:

'Capability to do it without chainsaw and unable to take away the debris.  The workers, he said, would work out if they could do the work and ring him to check first.' 

25He was responsible for Health and Safety.  There was no specific written induction material for his team of groundsmen.  They were told to report issues to him and he would look at it, assess it and get external contractors in.

'We would cordon the area off and look at booking a contractor to do the work.' 

26In terms of making an assessment about whether work was done internally or externally, there were no written procedures for doing that he said.  He said every tree had been rated and he knew there had been previous work done on this particular tree in question.  Prior to commencement of internally done work would not call for consultation with the Arbor Plan.  He never saw the grounds person refer to the Arbor Plan.  When asked about the meeting at which Mr Page and Mr Carter raised the issue of the tree in question, Mr Goodman said that on the day of the incident, a large limb was down near the creek, hanging out of the tree and:

'It's down near the creek, it's out of bounds, let it be.  If it comes down, it comes down, then it might be able to be cleaned up, but let it be, leave it.  If it's too big, I will get Tree Wise Men in.' 

27That conversation was had at about 10.30 to 11 am but Mr Goodman did not go and look at the tree. 

28At that time, the personal protective equipment available at Berwick when undertaking tree work was ear and eye protection he said, and when asked about what instructions the men had been given about using the PPE equipment, he said: 

'The boys were informed and knew what to wear because of their training.'

29No helmets or hard hats were supplied.  He had not thought about the use of hard hats or helmets for chainsaw work. 

30He himself had delivered – if all of those listening could please just mute your connection please. 

31He had not thought about the use of hard hats or helmets for chainsaw work.  He himself delivered no training about tree work or the risks associated with it.  He had provided no information or instruction about the risks relating to tree work because the work performed, he said, was minor and performed with a handsaw. He said that the Arbor Plan had included information about the particular tree but he had never told his team about these observations.  The only action ever taken to exclude the area underneath the tree from use had been it being referred to as, 'out-of-bounds.'  He said: 

'Mr Page had been at the campus the longest and had good knowledge of all the trees around the school and would sometimes ask Mr Goodman before working on a tree, but not necessarily.' 

32He acknowledged that before the incident, that job safety analysis was minor.  He said:

'A formula that probably wasn't fully in place.' 

33That is, that such a JSA was available, but not used or referred to routinely in the work undertaken, with no requirement that such analysis be done.  JSAs were put in place and safety procedures were put in place after the event with a staff member employed for risk assessment for the whole campus.  Hard hats are now available. 

34When shown the Arbor Plan for the particular tree in question, Mr Goodman said that the particular tree was not discussed at Corporate Services meetings and no discussion was had about medium risk or low medium risk trees. 

35The Arbor Plan which was produced identified a particular gum tree, its defects, age, structure and dimensions in 2013, 15, 16 and 17.  In 2013, it is noted that:

'No stationary target to be beneath tree.' 

36In 2016: 

'Further failures are considered possible.'

37In 2017, it is noted that: 

'The previous recommended exclusions remain applicable and further large scaffold branches had failed.'

38It classified the tree as a medium risk of priority.  I note in passing that a job safety analysis ensures consistent and safe work methods which assists workers to know how to best perform a task without the likelihood of injury and which provides a form of training documentation regarding the employee's knowledge of the safety requirements of the work as well as an acknowledgment by the employer of the risks involved in the work.  It does this by breaking a job into sequences which I defined and identifying potential hazards for each task and outlining measures to reduce those hazards. 

39Vince De Argo, who was the head gardener, was supervised by Mr Goodman, and he also spoke to Ben Carter and Kym Page as well as Mr Goodman at lunch on the day in question and gave evidence that he told them to make sure nobody goes down to the creek and not to touch the tree.  He had not been told about any risks associated with the trees and did not know of a tree inventory or an Arbor Plan.  Mr Goodman said he had a copy of that plan but that no one on his team ever looked at it. 

40The import of Mr Goodman's evidence about the plan was that his intent was to reduce the high-risk trees down to medium or low, and he could not recall organising any action in relation to the tree in question apart from dead wood removal.

41I have taken some time to recite this evidence because it provides some insight into the nature and gravity of the breaches to be evaluated.  Arborist, Trevor Douglas, provided an expert opinion about the fatal incident.  He was engaged by WorkSafe to attend on the day in question at Haileybury College in Berwick where he inspected the scene and was later also provided with relevant documentation. 

42Mr Douglas observed the position of the tree branch in relation to the deceased.  A large eucalyptus branch was next to him with a section of longer branch wood and a pile of smaller cut branches nearby.  Two chain saws were near Mr Page, one of which was still running when he was found. 

43Mr Page was wearing neither a safety helmet or hard hat at the time, nor chainsaw protective clothing or equipment. 

44As to the possible mechanism of injury from examining the cuts made to the pieces of the branch, Mr Douglas opined that Mr Page had been cutting up the branch found near him, whilst it had been attached to the tree trunk or detached or partly detached and still supported at height against the trunk near its original attachment point.

45Mr Douglas explained that such a large branch, when hung up in this fashion, would be under significant forces of compression resulting in stored energy being released during cutting which allowed the piece to move and often result in violent and unpredictable movement.  The pieces of the branch, he noted, would have produced a branch ten metres long. 

46He wrote that one needs appropriate knowledge, training and experience to identify the inherent hazard of attempting to extricate such a branch and create a work plan that will reduce the risk of serious injury. 

47George Walden works for Tree Wise Men and is a self-employed tree removalist since 1982 and has performed tree work for Haileybury College for about 15 years.  He had previously done work on trees three or four times in the area along the creek where the incident occurred. 

48On the day in question, he had not been contacted by Mr Goodman or anyone else at the school.  When he attended at the school, he noted that the incident area was not roped off.  He provided an opinion as to the alternative mechanism of the events which were educated guesses.  He explained that he would have put a rope or chain on the end of the branch and driven off with a truck to bring the branch safely to ground. 

49Mr Douglas identified that Haileybury had no documented decision-making process for determining whether tree works were completed by external professional contractors as against internal groundskeeping employees. 

50He noted the incident area had not been clearly designated as an exclusion zone or a no-go zone, with regards to ground staff, that is, an area that no ground staff should have entered without appropriate PPE including hard hats. 

51An alternate work method could have been identified or devised, such as that mentioned by Mr Walden for removing the branch and there was no clear process, method, or system in place, he wrote for the use of PPE when using high risk equipment such as chainsaws, for example, a hard hat which was recommended by the manufacturers of the chainsaws. 

52The employees provided evidence, he pointed out, that they had not been informed by Haileybury about the risks associated with cutting tree branches with chainsaws, especially not that day. 

53Haileybury was in possession of a tree management plan, the Arbor Plan, which indicated the assessment made about the trees on the campus and associated risks which were noted in the plan, together with work required and risk of branch failures, together with recommendations that no foliage be removed and no stationary targets be allowed underneath the tree. 

54Haileybury had a documented policy in place regarding PPE but that policy focussed on risks in the classroom and building environment, rather than risk associated with work performed by ground staff.  Mr Douglas's report was the foundation of the Crown submission as to the gravity of the breaches. 

55In simple terms, the Arborist's report was a detailed and robust audit which identified what needed to be done, but this was not augmented by the necessary system to clearly determine how, and by whom, the work was to be performed.  Rather, this was seemingly based on a verbal case by case decision with no consistency, processes or rationale in place, much less a comprehensive analysis of the hazards involved.

56The lack of a clear method, process or system for the use of personal protective equipment in relation to the use of high-risk equipment such as chainsaws, including a safety hard hat and cut-retardant clothing, further heighten the hazard of the work undertaken.  This hazard is recognised by the chainsaw manufacturers, Stihl and Husqvarna in this case, and by Safe Work Australia's guide for managing risk of tree trimming and removal work which recommends the wearing of a safety helmet to reduce the risk of being struck.

57Contrary to the Arborist's report, the area was not made an exclusion zone, and appears not to have been roped off in any sense as being hazardous even before Mr Page began to work on the branch which was not done at all.  The reference to that area being, 'a no-go zone' was clearly insufficient.  It may have been an area as the ground staff viewed as a no-go zone for students and staff, but that designation was clearly insufficient. 

58This was an area that should have been an exclusion zone with adequate measures to exclude entry, not just at the time when Mr Page began work there, but before.  The inadequacy of the 'no-go zone' can be demonstrated by the fact that the woman who found Mr Page, Ms Holmes, was walking in that area with her children aged six and seven, who was walking along the Cardinia Creek path when she came across him on the ground.  

59Mr Douglas made seven recommendations in relation to the methods to reduce the risks which coalesced on the day and culminated in Mr Page's death.  He also expressed his opinion about the likelihood of the hazards or risks eventuating, which I accept.  See pp5 and 6 of his report. 

60Those risks range between some risks from falling parts from trees to very likely strike injuries for non-professionals attempting tree work; to high risk of injury using a chainsaw without adequate protective equipment, to extremely high, due to the method of work when combined with the other risks outlined.  It is clear that the potential for harm ranged from serious to fatal injuries.  The cost of the elimination or reduction of such risks would have been minimal, and the cost of a professional tree crew to do the work, to the provision of safety helmets and chaps. 

61It is reasonably clear that Haileybury had an appreciation of the risk which trees presented to its campus.  The history over a number of years of having arborists inspect and report its extensive audit of the trees on the property shows they did turn their mind to the value of having that information with regards to the management of the trees and what risks they posed. 

62However, beyond receiving such a detailed report and intending to reduce the high risks to lower levels of risk, Haileybury failed to put in place a system of work which clearly determined and documented the process needed to not only manage the risk which the trees of themselves presented; perhaps more importantly, dealt with the hazards of the work required to be performed on the trees.  This lack of clarity about determining who was to work on the trees, how the work was to be performed, when and with what protection, in the form of a documented decision-making process, was lacking. 

63It was suggested to Mr Douglas that Haileybury was not fully aware of the risks of performing such work.  He found this surprising for an organisation of the size and resources of Haileybury.  I agree with his assessment that Haileybury ought to have reasonably undertaken steps in relation to the provision of information, instruction and training to employees in relation to the tree works.  It would appear that the lack of a clear decision-making process to determine tree work or standard operating procedures to deal with the identified risks, led to a failure to provide this important practical knowledge to employees by way of information, instruction and training on that day.

64Following the incident, a WorkSafe inspector issued an improvement notice requiring Haileybury to provide PPE to its employees, including hard hats and associated face shields for use whilst operating a chainsaw and by April 2018, the inspector deemed the notice to have been complied with by Haileybury.

65The college also went beyond the requirements of the improvement notice and adopted a documented process to ensure the provision of a safe system of work in relation to its operations including tree works. 

66The court was presented with an agreed summary of the facts agreed between the parties which I have recited.  The maximum penalty for each of the two charges for a body corporate is 9000 penalty units.  Haileybury has no prior convictions. 

67Victim impact statements were received by the court, two of which were read out, but each of which I have carefully again read. 

68They each reflect the devastating loss for Kym Page's family.  His wife, Catherine Agrotis, his mother Anne on her own behalf, and on behalf of his sister Joanne, as well as his father John Page and sister Bettina Morrow each made such a statement. 

69Mr Page's wife, Catherine Agrotis' statement is a very measured and dignified statement, reflective on the loss of a beloved husband and father of two young children.  Her accounting of having gone to the Haileybury campus to see her husband once she had been informed of a serious occurrence makes for difficult and touching reading.  Ms Agrotis was unfortunately prevented from going to Mr Page's side at that moment, but she did see him in the Coronial van and noted his injured state.  These moments and memories naturally led to nightmares and profound grief.  She had to seek leave from her work as a teacher and ultimately left that job as the school she worked was opposite and in close proximity to Haileybury College.

70Similarly, she left the home the family had lived in up to that moment, to deal with the emotional, physical and psychological impact of her loss.  She was supported by family and friends in a period of anger, sadness and acceptance.  She experienced physical decline in that period including six bouts of pneumonia, but she endeavoured to look after her young children and survive this tragedy.

71Ms Agrotis acknowledged in her statement that her husband's death had a financial cost, but also that Haileybury College offered to pay for a number of things and did so unquestioningly.  The college paid Mr Page's wage for three years after his death, as well as the full extent of benefits he had accrued.  This enabled her, she wrote, to get her life and future in some order particularly as she had to put her career as a teacher on hold.  She also acknowledged, with gratitude, the College's offer to educate unconditionally her two young children free of educational fees which was prospectively, a substantial amount.  I take her powerful statement into account and will say more later as to its relevance.

72Mr Page's father, John Page, also wrote a statement.  He writes that he was very close to his son.  The loss of a child is always a life-altering event.  He described it as soul-destroying.  Mr Page Senior has been on anti-depressant medication, his sleep patterns have been undone and he has sought counselling. 

73The endeavour of he and his wife to help their daughter Joanne who has Down's Syndrome and an intellectual disability to deal with, Kym Page's loss has been traumatic in itself. 

74Kym Page's mother, Anne, wrote in her statement of the impact of the overwhelming sadness upon her wellbeing.  The need to provide for Joanne, her daughter, in the aftermath of the tragedy was a demanding effort which impacted her own grieving process and was all consuming.  This impacted on her health, sleep and her relationship.  She wrote, she simply felt depleted as a person. 

75Ms Page also wrote on behalf of Joanne who is 44 years of age and has experienced the loss of her beloved brother as a loss of confidence, and now regression in most functional skills.  It has taken some three years to have appropriate psychological support for Joanne and her particular needs which she is only now beginning to achieve some improvement. 

76Finally, Mr Page's sister, Bettina Morrow, also provided an impact statement.  She writes her brother's death has been devastating.  She received the news in the U.S after just had time with her family in Australia.  Being away from the family home added to her grief and affected relationships, as often profound grief does.  She remarked that Kym Page was a kind-hearted, gentle giant, loved by all who knew him and is greatly missed.

77The prosecution and defence provided written sentencing submissions as well as oral submissions upon the plea and to a large extent there were few areas of dispute, both as to the applicable law and as to issues in the sentencing exercise. 

78The first matter of note is that it was clarified by the prosecution that I should sentence in relation to Charge 2 as particularised in the indictment, of a failure to provide information, instructions and training related to the risk which arose on that day; that is, on or about the day of the incident, and not for any earlier failure to do so.  In as much as paragraph 9 of the prosecution opening suggests that a broader scope than the day in question, that was disavowed by the learned prosecutor as being in error.  

79In as much as the summary or indeed the evidence reflects upon the provision or lack of information, instruction, or training before this day, it is not at all what I focus on when dealing with Charge 2.  Rather, it is the failure on the day of the incident. 

80This narrower context also impacts on paragraph 12 of the prosecution sentencing submissions as explained by the prosecutor at paragraph 13 of the plea transcript.  I will disregard the second sentence of paragraph 12. 

81Concomitant to this correction however, and in spite of it, what is alleged by Charge 2 is not a broader offence of failing to provide information, instruction and training over a longer period to employees as the prosecution points out, but the overall evidence nonetheless, provides context to Charge 2 in the sense that it could not be said, and the defence does not seek to say so, that this failure was an isolated failure against a backdrop where information, instruction and training were otherwise provided.

82Another correction was sought to be made about comparable cases mentioned in paragraph 17 of the prosecution submissions on sentence.  This was because the prosecution endeavoured to provide some further material to enable the comparability of these cases to be properly evaluated.  This also impacts upon Charge 2.  I will disregard the offending sentence in paragraph 17(b) of the prosecution submissions identified by the learned prosecutor at pp13 and 14 of the plea transcript and this also applies to paragraph 17(c), a passage about another case.

83Having made those concessions, the prosecutor emphasised the objective gravity of the offence in Charge 1 by submitting that this was a significant falling-short of the system of work in a number of ways identified by the expert evidence and Charge 2 identified an important failure in the circumstances. 

84It was said that the objective gravity took precedence over the circumstances of the offender with reference to Amcor [2005] VSCA 219 and Profab [2000] 49 NSWLR 700 decisions.

85The prosecution submitted general deterrence is the pre-imminent consideration.  (See Yarra Valley Water [2006] VSCA 279, Nettle JA, and DPP v Redback [2017] VCC 1602.

86The prosecution submitted the offences occurred in relation to a known and reasonable foreseeable risk.  The risk was of death or serious injury and upon evidence there was a significant likelihood of the risk eventuating.  This was made clear by the evidence of Mr Douglas and Mr Walden. 

87Defence counsel appropriately began its submission by acknowledging the really serious impact these offences have had on Mr Page's family, wife and children as well as co-workers.  It was acknowledged that Mr Page was a very well-respected, highly valued, well-liked employee of Haileybury for many years. 

88I was urged in determining objective seriousness, to do so on the agreed summary and on the particulars.  I intend to do so. 

89The defence accepted that the risk from compression and tension is known in the industry.  It may not have been properly or fully understood by Haileybury, the school, to distinguish between what an arborist and his industry and the school in its industry know is a fair comment.  The school clearly did not possess the knowledge that Mr Douglas has. 

90However, it is also true that the school was in possession of an Arbor Plan, one developed over many years in relation to the trees on its' property and one which not only ranked the risk priority as medium in relation to the particular tree, but which highlighted in my view sufficiently, what kind of risks or hazards were involved by the tree's presence and their management.

91In relation to the objective seriousness, defence counsel noted the tripartite classification which was mentioned by the prosecutor by reference to the Victorian Sentencing Manual of the Judicial College of Victoria.  He urged a very close examination of the falling-short, the gap between what Haileybury did, and what they should have done.  He pointed out that Haileybury had engaged Arbor Safe and external contractors.  Despite the statements made by Mr Goodman and Mr De Argo to Mr Carter and Mr Page about not working on the tree in question, the tree was touched.

92However, Mr Goodman did not contact the external contractors that day.  The area was not roped off.  The right equipment was not available.  There was no further information, instruction or training given about the situation of the tree in question and how to deal with it.  The process for determining what tree work should be done internally and what should be done externally was not documented.  The defence submitted this was not a case of an entity doing nothing.  Clearly, not enough was done. 

93In my view, though, there was an Arborist Plan in place, the tenor of the evidence given by the witnesses employed by Haileybury and the expert opinion demonstrates that this was a significant failure with reliance being placed on general conversations about what ought to be done, without clear guidelines for decision-making without the process and analysis required to identify the precise work to be done, how it was to be done and by whom, in view of the hazards involved.  This generality probably led Mr Page to take matters into his own hands. Information, instruction and training may have caused him to be more cautious or to desist from the work. 

94True it is, he was not instructed to do the work without adequate training and instruction and equipment, but the deficient system was deficient enough in very specific respects and those deficiencies clearly contributed to the circumstances when the work should not have been attempted at all.  The former is perhaps a more serious failure.  The latter nevertheless is still significant. 

95I accept that Haileybury in its plea of guilty is remorseful.  The amelioration of harm which it has undertaken are a further demonstration beyond the plea itself and I accept these have been genuine efforts in the face of the harm the offending caused. 

96I take into account the utilitarian benefit of the plea and having avoided a relatively complex and traumatic trial.  The plea comes at a time of pandemic which has rendered the delivery of justice outcomes much more difficult and the plea therefore facilitates the course of justice and finality.  It will reduce the sentence appropriately as a timely early plea in the matter. 

97The improvements to its systems of work following this incident as set out in Haileybury's submissions, are mitigatory.  They are set out at paragraph 18 of the defence submissions as well as documents and they include matters that have gone well beyond the improvement notices received from WorkSafe including quarterly Arborist reviews, rather than annually, removal of all chainsaws from all campuses, providing regular and ongoing training, appointing a fulltime safety and risk advisor, and a number of other important measures.

98I accept that Haileybury is a company of good corporate character and has an extensive social justice and charitable works program and that specific deterrence in this case is superfluous and does not weigh in the sentencing equation. 

99I accept that the amelioration of harm mentioned above has been substantial, both in fact and prospectively.  Haileybury paid about $43,300 in associated costs of the family, as well as estimated fees valued at over $1m, this assistance starting in the Early Learning Centre through to Year 12 for both children of Mr Page.

100I have said earlier, I take into account the impact of the offences on its victims.  Although the Occupational Health and Safety Act offences are risk-based, not outcome-based, and that the offence is not made more serious by the fact that a risk eventuated, the court takes into account the impact.  I cannot, and nor should I be concerned to find whether the adoption of safety measures would have prevented Mr Page's death.  I accept that Haileybury acknowledged the serious and ongoing impact and has expressed beyond the plea itself, remorse and regret for his death.  I accept that Haileybury cooperated in the investigation fully. 

101In my view, the extent to which Haileybury departed from its statutory duty in some respects is illustrated by comparing what was in place at the time of the death of Mr Page as compared to what is seen to be appropriate now, after remedial measures.  I am satisfied that the departure from the statutory duty was significant and therefore a serious breach of the duty imposed. 

102It is helpful, in my view, briefly, in order to properly understand the principles which I have applied in this sentence, to set out the principles which apply in respect of breaches of the Act where death or serious injury occurs. 

103They have been helpfully set out in the judgment of DPP v Frewstal [2015] VSCA 266 at 127.  I hope also that this may assist those of Mr Page's family who are listening. 

104First, the occurrence of death or serious injury is not an element of the offences charged.  An accused, like Haileybury in this case, is punished according to the gravity of the breach of duty owed under the Act, not according to the result or consequences of the breach. 

105In that sense, the offences under the Act with which I am concerned, are said to be risk-based, and not outcome-based.  Consequently, the fact that the breach resulted in death is relevant only to the extent that it might inform the assessment of the existence of a risk and the nature of that risk.  (See Dotmar v The Queen [2015] VSCA 241 at 22.) 

106Hence, in determining the gravity or seriousness of the offence, the sentencing court must assess firstly the extent of the departure from the duty owed.  I have endeavoured to do so.

107Secondly, the extent of the risk of Health and Safety thereby created, in my view such risk was serious.  Thirdly, the likelihood or risk of particular harm resulting. 

108Another way of expressing this is that the gravity or seriousness of a breach is to be measured by reference to the potential consequences of the breach, the extent of the evidence disregard and the risk of the potential consequences materialising.

109In my view, the potential consequences were serious.  The disregard for the safety of employees significant, and the risk very real and grave. 

110The court in Frewstal, I note the same which constituted the court in Dotmar the same month of 2015, continued in its useful outline of the principles in a similar vein. 

111It noted secondly, the gravity of the breach is measured by two factors, the seriousness of the breach, that is, the extent to which the defendant has departed from the statutory duty, and the extent of the risk of death or serious injury which might result from the breach. 

112Thirdly, an assessment of the extent of the risk involves considerations of two factors, the likelihood of the occurrence of an event as a result of the breach, such as the event that occurred in this case, endangering the safety of employees and others, and the potential gravity of the consequences of such an event, in particular whether there is a risk of death or serious injury. 

113Fourthly, the fact that the breach resulted in the death is relevant only in the sense that it might demonstrate the degree of seriousness of the relevant threat to Health and Safety resulting from the breach.

114As to the second feature, in my view, the breach, I repeat, was significant and the extent of the risk was serious. 

115As to the third feature the likelihood of an occurrence was moderate to high, rather than rare or low.  As to the potential gravity of the consequences, the risk of death and serious injury was moderate to high.

116As to the fourth feature, the death of Mr Page, in my view, demonstrated the relevant threat to safety resulting from the breach. 

117Haileybury's failure also extended on the day to not having in place systems for the delivery of timely and appropriate information, training and instructions.  There was an assumption made that the people involved would know what to do and how to go about it.  The failure to deliver such training, information and instruction meant that the risk to the employee was heightened.  This was a failure in relation to a foundational safety obligation of employers. 

118Any proper assessment of risk in a workplace must involve consideration of what training, information or instruction is required to ensure safety of all of those who are to perform work.  This failure, although consequential upon the failure to ensure a safe system of work is a separate breach and will be punished separately. 

119General deterrence is the pre-eminent sentencing consideration in matters of this risk.  The level of culpability, if such a measure is useful in the scheme of the sentence, in this case is in the middle range, neither low nor high.  This was not an accident involving wilful non-compliance with safety standards, but a failure to recognise the true risks and put in place adequate safeguards. 

120The sentence must demonstrate to all employers their active and ongoing duty to ensure, as far as practicable, the health and safety of their employees.  A degree of complacency, based perhaps upon the lack of previous incidents over a period of years, may have led to this point. 

121As Harper JA said in Holmes v RE Spence & Co Pty Ltd (1992) 5 VIR 119 at 123, an employer's responsibility:

'Can only be discharged by taking an active, imaginative and flexible approach to potential dangers in the knowledge that human frailty is an ever-present reality.'

122Both parties made submissions as to current sentencing practices.  The defence provided some cases as relevant comparators and I have considered each and other cases more generally in order to ascertain and take into account as far as practicable, current sentencing practice.

123Haileybury submitted that the cases, although relevant comparators, were instructively different.  The prosecution agreed the cases could be considered comparable in the sense described in Frewstal at p671 at 49, and the prosecution provided, in this context, some additional material about each case so as to make meaningful comparisons. 

124I have studied this material and although they provide guidance in terms of indicating a yardstick against which to examine the sentence, ultimately, they offer limited assistance. 

125I was referred to the DPP v Redback Tree Services [2017] VCC 1602, Nettle JA's judgment.  The DPP v Melbourne Tree Stump Removal, a decision of Her Honour Judge Hannan of 13 June 2018 and VWA v TAD, a Magistrates' Court decision of 12 October 2020, as well as VWA v Australian Steel Company. 

126They were explored in some detail in both written submissions and in the course of the plea.  That material was expanded. 

127I agree with both counsel that Redback is at a higher category of culpability.  Melbourne Tree Stump Removal lacked some specificity in information sufficient to be of assistance in my view, as indeed is the case of the other two cases.

128Although these are matters related to each of the latter three cases that are known, there are significant limitations due to absence of more complete information.  Two other cases were agreed to be examined during the plea, Hallet Flowers and Habitat.  In each, significant information was not available though falling generally within what the prosecution described as the second or mid-category offending as in this case of Haileybury.

129Ultimate the significant variation in sentencing for reasons which cannot be fully explored due to absence of material, cannot assist the court beyond a rough yardstick. 

130In my view, as part of the sentencing synthesis, I should take into account principles of just punishment and denunciation, given the nature of the object of the Act.  I will apply the principle of totality to these two distinct offences which nevertheless as I have endeavoured to explain, have an aspect of overlap. 

131I note in relation to the penalty, the financial commitment already made by Haileybury and note its ‘Not For Profit’ status which affect the company's ability to treat such a fine as a tax deduction. 

132On Charge 1, Haileybury is convicted and fined $90,000.

133On Charge 2, Haileybury is convicted and fined $50,000, the total fine of $140,000. 

134But for the plea, I would have fined Haileybury $200,000. 

135Mr Palmer, is there a stay sought in relation to that fine of a particular period? 

136MR PALMER:  Yes, Your Honour, if possible, one month Your Honour is sought. 

137HIS HONOUR:  I am sorry, was that one month?

138MR PALMER:  One month Your Honour.

139HIS HONOUR:  I will order a stay of one month on the payment of the fines. 

140MR MATTHEWS:  If Your Honour pleases.

141HIS HONOUR:  Thank you.  Are there any other outstanding matters, Mr Matthews?

142MR MATTHEWS:  No, Your Honour.

143HIS Honour:  Thank you.  I have another matter.  I will stand down.  Thank you all.

144MR MATTHEWS:  If Your Honour pleases. 

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