Director of Public Prosecutions v St Vincent's Care Services Ltd

[2021] VCC 1315

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-19-02451

DIRECTOR OF PUBLIC PROSECUTIONS

v

ST VINCENT'S CARE SERVICES LTD

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JUDGE:	O'CONNELL
WHERE HELD:	Melbourne
DATE OF HEARING:	13, 14, 16 April, 30 July, 10 September 2021
DATE OF SENTENCE:	14 September 2021
CASE MAY BE CITED AS:	DPP v ST VINCENT'S CARE SERVICES LTD
MEDIUM NEUTRAL CITATION:	[2021] VCC 1315

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:   Sentence after trial by judge alone without a jury; Offender operator of aged care facility; Failure to ensure non-employees (residents) were not exposed to risk to health and safety; Risk to residents leaving facility without offender’s knowledge; Requiring residents to ‘sign out/sign in’ as a reasonably practicable measure to eliminate risk; Isolated failure; Previous excellent character; Positive attitude of victims towards offender; Prompt and appropriate steps taken to eliminate risk; Non-conviction fine appropriate.

Legislation Cited:  Occupational Health & Safety Act 2004; Sentencing Act 1991

Cases Cited:DPP v St Vincent’s Care Services Ltd [2021] VCC 1035

Sentence:Fine of $25,000 without conviction

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr G. Hevey	Office of Public Prosecutions
For the Accused	Mr R. O’Neill	Minter Ellison

HIS HONOUR:

Introduction

1On 30 July 2021, after a trial determined by judge alone without a jury, St Vincent’s Care Services Ltd was found guilty of failing to ensure that persons other than employees were not exposed to risks to their health and safety arising from the conduct of its undertaking, contrary to s 23(1) the Occupational Health & Safety Act 2004 (‘the Act’).

2It is my task now to impose sentence and explain the reasons for doing so.

3The circumstances giving rise to the commission of the offence and the reasons for the finding of guilt are set out in some detail in the judgement of DPP v St Vincent’s Care Services Ltd [2021] VCC 1035. Those reasons should be read in conjunction with these reasons for sentence.

The offence

4The following extract from the judgement will assist in quickly understanding the offending:

“St Vincent’s Care Services Ltd (‘SVCS’) operates an aged care facility known as St Vincent’s Care Werribee at 240 Hoppers Lane, Werribee. The facility provides a residence for elderly people who want or need assistance and care due to medical or mental health problems or, in some instances, a decrease in their mobility. The level of assistance required by each resident differs markedly.

On 21 February 2018, Mr William Keating became a resident at the facility. Mr Keating was then 88 years of age, having been born on 5 June 1929. One of the reasons Mr Keating was moved to the facility was to provide him with the opportunity to walk around both within and outside the facility. He did this regularly with the assistance of a wheeled walking frame.

Mr Keating apparently enjoyed his walks and was described by his daughter as being in ‘pretty good’ health. He did not suffer from any form of dementia. He did not suffer from any specific medical ailment.

The incident

At about 8.38am on Saturday 10 March 2018, Mr Keating left SVCS for a walk, taking a newspaper with him in the basket of his walker. About 9.30am, Mr Keating’s daughter, Ms Jennifer Luckhurst, arrived with her husband to visit Mr Keating. They discovered that he was not in his room and began searching for him inside the facility, as well as in the area around the outside of the building where Mr Keating would ordinarily walk.

Staff were notified at around 10.15 to 10.30am and further attempts were made to locate Mr Keating, but to no avail. CCTV footage confirmed that he had gone outside at about 8.38am but there was no footage of him returning.

At around 11am, Mr Keating was found about 100m from the facility, having fallen into an area that was being excavated by road builders. He had not been seen when the car park was earlier searched because he was about 450mm below ground level. It was only the waving of a newspaper that caught the attention of those searching for him. Apparently, Mr Keating had been attracted to a Bobcat being used in the road construction and had ventured off the footpath to have a closer look.

As a result of his fall, Mr Keating was badly injured and was transported to the Royal Melbourne Hospital, where he remained for approximately four weeks.”[1]

[1] DPP v St Vincent’s Care Services Ltd [2021] VCC 1035, [3]–[9].

5The gravamen of the offending was the failure to provide an appropriate procedure to monitor residents who left the facility for short periods. As what happened to Mr Keating illustrates, there was a risk that if a resident were to be injured or become ill whilst outside the facility, that resident might not be detected as absent at the earliest possible time. I held that the provision of a “sign out/sign in” register was a reasonably practicable step to take to ensure that residents were not exposed to such a risk.

Victim impact

6The incident involving Mr Keating was relevant at trial to illustrate the risk to the health and safety of aged care residents where steps were not taken to ascertain when a resident left the facility, where they would be, and when they intended to return. Acknowledging that limited relevance, Mr Keating’s son Colin, without objection, provided a victim impact statement “for the purpose of assisting the court in determining sentence”.[2]

[2] Sentencing Act 1991 (Vic) s 8K(1).

7Colin Keating described the impact of his father’s fall on 10 March 2018 as shocking and devastating both for his father and his family. Mr Keating senior suffered multiple broken ribs, a broken nose, a broken arm, facial injuries and multiple lacerations necessitating a lengthy stay in hospital, which he endured in constant pain. He never recovered his mobility to the same degree. He passed away later in 2018 due to a number of complex health issues. His family believes that the injuries he sustained from this fall hindered his capacity to deal with his other health conditions.

8I will take those matters into account in formulating sentence.

9Although a sentencing judge would ordinarily exercise some caution in taking into account the attitude of a victim towards an offender,[3] I do not think it is inappropriate in this case to do so.

[3] R v Skura [2004] VSCA 53; Smith v The Queen [2010] VSCA 192, [8].

10Colin Keating indicated that he and his family had been comforted by what he described as “the remorse shown by the management at St Vincent’s as a result of our father’s accident”. He further stated:

“As a family, we were grateful for the level of care provided by the St Vincent’s staff and the quality of the facilities in dad’s time as a resident. We are also grateful to the management of the facility and the steps they took post the accident to ensure this situation wasn’t repeated for any other residents.”

11The “steps they took” refer to the SVSC’s response to the Improvement Notice issued on 14 March 2018 which resulted in the implementation of a “sign out/sign in” procedure. The evidence at trial established that that procedure was quickly and readily introduced and eliminated the risk the subject of the charge.

Circumstances of offender

12St Vincent’s Care Services Ltd (‘SVCS’) is a subsidiary of St Vincent’s Health Australia (‘SVHA’) which is a Catholic health care and aged care provider operating 6 public hospitals, 10 private hospitals and more than 20 residential aged care facilities across eastern Australia. It is a non-profit registered charity which was established by the Sisters of Charity. It was submitted, and I accept, that it has a proud history of service to the community dating back to the establishment of St Vincent’s Hospital in Sydney in 1857.

13SVCS has no previous or subsequent convictions or findings of guilt.

14It has an unblemished occupational health and safety record in that it has never received an improvement or prohibition notice other than in respect of this incident in over 30 years as an approved provider of residential aged care services.

15Further, it was submitted, and I also accept that SVCS has an excellent regulatory compliance record across all of its residential aged care services in Victoria.

16Beyond those considerations, it was said that SVCS contributes to the community significantly in other ways, through its social programs which provide care to members of vulnerable groups such as Indigenous Australians, those experiencing chronic homelessness, and asylum seekers.

17Finally, in dealing with good character, it was argued that I should take into account the evidence provided at trial by Mr Keating’s daughter, Ms Luckhurst, in that she described the staff at SVCS as “fantastic in their approach and follow-up”[4] to the incident involving Mr Keating.

[4] DPP v St Vincent's Care Services Ltd [2021] VCC 1035, [125].

18I accept all of these matters and will sentence SVCS on the basis that this offence represents an isolated failure in what has otherwise been an exemplary record of compliance and service.

Nature and gravity of the offending

19Mr O’Neill, who appeared on behalf of SVCS, submitted that the extent to which SVCS departed from the statutory duty to ensure that residents were not exposed to risk should be viewed as being at the lower end of the range because the evidence at trial showed that there was a “sign out/sign in” procedure already in place at the facility, albeit that there was a failure to ensure that it was used.

20He accepted that incidents of the kind suffered by Mr Keating were foreseeable, but submitted that the risk should be viewed as less serious because it related not to the hazard that caused the injury to Mr Keating, but rather to the failure to detect that he had been injured in a timely way.

21Mr Hevey, who appeared on behalf of the Director, submitted that this prosecution was never about the specific incident involving Mr Keating – rather, that incident was indicative of the risk of serious injury due to the system, or lack thereof, that was in place at the time of Mr Keating’s injury.

22As I understood him, Mr Hevey did not take too much issue with Mr O’Neill’s characterisation of the seriousness of this offending, save that he emphasised that the procedure in place at the time was clearly inadequate to address the risk to residents arising from the failure to monitor their whereabouts.

23Nor did Mr Hevey take issue with the submissions made on behalf of SVCS as to its character, its good works and its lack of previous convictions.

Comparative cases

24I was told that Kane Constructions was fined $15,000 in the Magistrates Court for its failure to properly fence the road construction site into which Mr Keating strayed when he was injured. It was submitted that SVCS would harbour a justifiable sense of grievance were it to be sentenced to a much higher penalty, given that Kane Constructions was responsible for directly exposing Mr Keating to the injuries he suffered.

25I was also referred to two comparative cases dealt with in the Magistrates Court. The first involved an offender, Baptcare Ltd, which owned and operated a residential aged care facility in Frankston South. In that instance, hot coffee was spilt on an aged care resident and the catering assistant responsible had not been trained in how to respond to such an emergency. The resident received a serious burn injury. Baptcare pleaded guilty and was fined $20,000 plus costs.

26The second case involved Mercy Hospitals Victoria Ltd, where an outpatient using a walking frame was struck by automatic closing glass doors which were defective. Charges under ss 21 and 23 of the Act were withdrawn after Mercy Hospitals entered into an enforceable undertaking.

27No point of principle arises from those cases and their assistance in locating current sentencing practice is extremely limited.

28The penalty imposed on Kane Constructions, however, does, I think, operate to constrain the sentence imposed on this offender. That is so despite the considerable distinguishing features. Kane Constructions was dealt with in a different jurisdiction in circumstances where it owed different duties. Moreover, it pleaded guilty.

29As I made clear to Mr O’Neill, SVCS is not to be punished for pleading not guilty. However, it does not receive a reduced sentence for pleading guilty whereas Kane Constructions must have received such a benefit. Otherwise, the parties were not able to furnish me with any other details associated with that case.

30Despite that lack of detail, the principle of equal justice[5] as I understand it requires me to take the penalty imposed on Kane Constructions into account in fixing the penalty on SVCS, and I will do so.

[5] Farrugia v R (2011) 32 VR 140, [26]–[27] per Redlich & Bongiorno JJA.

Conclusion

31I accept Mr O’Neill’s submissions as to the seriousness of this offending. Any criminal failure to address a risk to the health and safety of aged care residents is a serious matter. Nonetheless, I see this failure as occurring in an overall context of the offender seeking to provide an otherwise high standard of care. A “sign out/sign in” procedure was already in place, albeit that, as what happened to Mr Keating demonstrated, it was inadequate.

32Moreover, the evidence established that SVSC had acted promptly and appropriately to implement a much more effective procedure to ensure that this failure was isolated and the risk to residents was effectively eliminated. In those circumstances, I will treat this offence as falling at the lower end of the range of seriousness for this type of offending.

33SVCS’s previous unblemished record and otherwise good character, including the manner in which it responded to Mr Keating’s family, entitles it in my view to a considerable measure of leniency.

34Mr O’Neill submitted that, in all of the circumstances upon which he relied, the imposition of a fine which did not record a conviction would be the appropriate disposition.

35Mr Hevey, in response, submitted that such a penalty was within the range of sentences reasonably open in the circumstances. I agree. The sentencing purposes of denunciation and general deterrence can in my view be adequately addressed through that penalty, taking into account the lengthy and public nature of these proceedings.

Sentence

36Taking all relevant matters into account, St Vincent’s Care Services Ltd will be sentenced to pay a fine of $25,000. That fine will be imposed without recording a conviction.