Director of Public Prosecutions v The Crown in Right of the State of Victoria

[2021] VCC 1956

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-21-00971

DIRECTOR OF PUBLIC PROSECUTIONS

v

THE CROWN IN RIGHT OF THE STATE OF VICTORIA (DEPARTMENT OF EDUCATION AND TRAINING)

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:	19 November 2021
DATE OF SENTENCE:	26 November 2021
CASE MAY BE CITED AS:	DPP v The Crown in Right of the State of Victoria
MEDIUM NEUTRAL CITATION:	[2021] VCC 1956

REASONS FOR SENTENCE

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Subject:Plea – sentencing

Catchwords:            Failure of employer to ensure health and safety of non-employees

Legislation Cited:     Occupational Health and Safety Act 2004 (Vic);
Sentencing Act 1991 (Vic)

Cases Cited:           Dotmar Epp Pty Ltd v The Queen [2015] VSCA 241
  DPP v Frewstal Pty Ltd [2015] VSCA 266
  Director of Public Prosecutions v Amcor Packaging Australia Pty Ltd
(2005) 11 VR 557

Sentence:Aggregate fine $200,000

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APPEARANCES:	Counsel	Solicitors
For the DPP at hearing For the DPP at sentence	Ms N. Kaddeche Ms H. Devanny	Office of Public Prosecutions
For the Accused	Mr S. Stafford	Herbert Smith Freehills

HIS HONOUR: 

1The Crown in Right of the State of Victoria (Department of Education and Training), which I will refer to as “The Department” during the remainder of these reasons, has pleaded guilty to two charges of failure of employer to ensure the health and safety of non-employees.  The nature of each charge was particularised in detail on the indictment.

2Each offence carries a maximum penalty of 9,000 penalty units which at the time of the offending translates to a maximum fine of $1,450,710. 

3The Department has admitted a criminal history involving five separate matters between July 2007 and September 2011.  Much the most serious of those matters, and the only one which resulted in the recording of a conviction against The Department, involved an appearance at the Geelong Magistrates’ Court on 16 July 2009 on a charge of a broadly similar kind for which The Department was fined $50,000.

4The prosecution provided me with a written opening dated 3 November 2021, which is now Exhibit A on the plea hearing.  I am not going to repeat its contents in full, but I think it is necessary that I summarise it in some detail.

5The accused is charged with two offences under s23 of the Occupational Health and Safety Act 2004 (Vic) that on or about 26 November 2018, being an employer, failed to ensure so far is reasonably practicable that persons other than its employees were not exposed to risks to their health and safety arising from the conduct of its undertaking.

6Warringa Park School, to which I will refer from here on as “Warringa Park”, is located in Warringa Crescent, Hoppers Crossing in Victoria.  It is a State government special school and enrolment is open to students aged between 5 and 18 years who are diagnosed with intellectual disability.    

7The deceased victim in this case, to whom I shall refer simply by his first name, Jovan, was a student enrolled at Warringa Park from 2016 onwards.  Jovan died on 30 November 2018.  He was seven years old.  He was severely intellectually and physically disabled after being born with a condition known as Proteus Syndrome.

8Proteus Syndrome is a rare, complex condition with multiple complications.  The condition is significant and permanent.  Jovan was mostly non-verbal and had global developmental delay, dental decay, vision loss, cranial hyperostosis, lumbar scoliosis and hepatomegaly, which presents as an enlarged liver.

9Jovan required intensive and specialised assistance to meet every aspect of his daily care requirements, including bathing, dressing, toileting and feeding.  His mother described his condition as follows. 

His body was half like the size of an eight-year-old and half a lot larger.  This meant he was largely confined to a wheelchair however, there were times he was able to play on the floor or in the hydrotherapy pool, always with direct supervision. 

Jovan required special assistance with feeding and was only able to eat soft foods which we provided to the school.  He was able to feed himself with a spoon on some occasions however this also required constant supervision. 

When at home, Jovan was supervised at all times.  We installed ramps at home so that he was able to play under the pergola in our backyard.  Hoists were used to help Jovan in and out of bed and for bathing, we had a chair that he would help to move himself onto and wheel him into the shower.  Jovan required assistance with every aspect of his care on a daily basis.  He was mostly non-verbal and unable to communicate using words for anything that he wanted, needed, or was feeling. 

10Warringa Park required and was provided with medical reports and assessments as part of the enrolment application process.  Those documents stated, amongst other things, that he required constant supervision.  When Jovan was accepted into Warringa Park, the school submitted an application to the Department of Education and Training for funding to assist with Jovan’s educational needs.  The application was successful.    

11In 2018, Jovan’s mother made an application to the National Disability Insurance Scheme for additional support and requested the school provide her with a supporting letter for that purpose.  A letter was prepared by the school nurse which stated, amongst other things, that Jovan was wheelchair bound, required hoists and mobilised in a portable wheelchair, and that staff pushed the wheelchair between classrooms.

12Jovan’s semester 1 2018 student report noted: ‘Jovan is enjoying using the transit wheelchair to move around in his classroom independently.  He is also moving around the school in his wheelchair with supervision.’

13The circumstances of the offending are as follows.  On Monday 26 November 2018, Jovan was in his classroom using his transit wheelchair.  This transit wheelchair had been purchased by Warringa Park for Jovan’s exclusive use.  When using the wheelchair, Jovan was able to use his feet to have some control of his movements whilst in the classroom.  It was not a motorised wheelchair.

14At the time immediately prior to the accident which led to Jovan’s death, the students were getting ready to move from the classroom to the oval.  During that movement, another student had an unexpected behavioural incident requiring the immediate intervention of the classroom teacher and the teacher’s aide.  Normally, the teacher or the teacher’s aide would wheel Jovan down the ramp from the classroom to the concrete landing below.

15Also present in the classroom was a student teacher.  She came to be at the school as a consequence of a program available to her by undertaking a Masters of Teaching degree at Victoria University.  She was asked by the classroom teacher to start walking the children out and they, meaning the classroom teacher and the teacher’s aide, would catch up.  The student described what occurred as follows:

I remember Jovan was very excited because he loves sport and he was at the front of the line and another student was holding onto his chair. 

I opened the door and the children started to move outside onto the deck just outside the classroom.  I put the door stopper in to hold it open.  A few students were in front of me including Jovan and the female student who had been holding his chair let go and Jovan started to move really fast down the ramp.  I immediately let go of the sports bin to try to reach Jovan but it happened too fast.  I saw Jovan’s chair tip over at the bottom of the ramp and I heard a loud thump when his head hit the concrete.

16The bottom of the ramp did not meet the concrete landing flush.  Jovan’s wheelchair tipped over.  He sustained a hard bump to the left side of his head when his head hit the concrete landing.  The point when the wheelchair tipped over was caught by CCTV footage.

17The school nurse was called and attended to Jovan.  She later called Jovan’s mother to advise her of the incident.  Jovan remained at the school for the rest of the day before catching the school bus home, with his mother’s approval, which was his usual means of transport to and from school.

18The following day, Jovan stayed home with his mother for observation.  On the Wednesday morning, that is 28 November 2018, Jovan became unresponsive and was vomiting.  His mother called an ambulance and he was transported to The Royal Children’s Hospital.  Jovan never regained consciousness.  Following medical confirmation of brain death, the ventilator was turned off on Friday 30 November.

19On 3 December 2018, Dr Ross Young of the Forensic Medicine Institute of Victoria prepared an investigation report to the Coroner for the Coroner’s Court of Victoria, which states,  ‘In the absence of performing a full post-mortem, it appears reasonable to ascribe the cause of death as complications of head injuries sustained in a fall.’ 

20The matter was reported to WorkSafe and an investigation was undertaken.

21On 4 December 2018, WorkSafe inspectors attended at Warringa Park and issued a prohibition notice having formed the view that the ramp to the classroom - and indeed other ramps later were in the same category - posed an immediate risk to health and safety. After the incident, the Department Disability Access Consultants undertook an assessment of the ramp to determine compliance with various Australian Standards and the Building Code of Australia. They provided a report which concluded: ‘It was determined the ramp was non-compliant and we recommend closing the ramp off from use, undertake survey of levels, document compliant ramp and reconstruct.’

22I note that amongst the many photographs that were part of the hand-up brief that at least the photograph at p261 identifies the bottom of the ramp and the unevenness between the bottom of the ramp and the concrete landing.

23Subsequently, another assessment was carried out for all of the ramps at Warringa Park and a second report was produced which determined that the subject ramps had various non-compliances and it was recommended that reconstruction be carried out in accordance with the expert assessment.  The student teacher to whom I referred to earlier said that she was not given any instruction about the children’s special needs or medical conditions.

24There is evidence that Warringa Park had a practice of moving Jovan around the school in his wheelchair with supervision and staff pushing the wheelchair between classrooms.  There was no documented evidence that teachers, substitute teachers, aides, and trainee teachers were adequately trained in the supervision and mobility requirements of Jovan based on the specific risk assessments and care plans that applied to him.

25In summary, the prosecution observed that The Department’s fundamental undertakings at Warringa Park included care and supervision of students with varied cognitive and physical disabilities.  Further, that in order to reduce the risks to Jovan, it was reasonably practicable for The Department to, firstly, professionally assess construction plans and maintain all ramps in use at the school; and, secondly, instruct and train all teachers, substitute teachers, aides and trainee teachers in supervision and mobility requirements for Jovan based on adequate, specific risk assessments and care plans. 

26On 17 May 2019, The Department was invited to participate in a recorded interview with the investigators.  On 29 May 2019, that invitation was declined.

27I now turn to matters raised in the submissions by Mr Stafford on behalf of The Department.  The written submissions that he provided were comprehensive and well-balanced, and supplemented by equally well-balanced oral submissions.  The exhibited written submissions are dated 15 November 2021, together with a chronology.

28I intend to go through those submissions in some detail because I think it is necessary to understand the perspective of The Department in a matter such as this, and the scale of the undertaking for which The Department is responsible.  Mr Stafford, I think rightly, started his submissions by saying this:

The Department expresses its deep and sincere sorrow for the passing of Jovan [I will not indicate his second name], who was a much-loved student at Warringa Park School and who is missed by teachers and students. 

29I might say that all my observations of the material that was placed before me suggest that that statement is accurate, and it was an appropriate way of The Department to begin its submissions.

30The Department of Education and Training has pleaded guilty and, having regard to the COVID times that we are living in, The Department is entitled to a significant reduction of sentence accordingly.

31After the WorkCover Authority investigated the matter, they were engaged with The Department in negotiations to attempt to resolve the matter during 2020, prior to the committal mention.  Those negotiations were not successful and the matter proceeded to a summary jurisdiction application.  That application was refused in January 2021 and the parties then entered into further negotiations which were successful.

32At the committal mention on 11 May of this year, The Department entered pleas to the two charges which appear on the indictment.  I treat the pleas as early pleas and I give The Department full credit for the pleas, repeating as I do that they have been made in these COVID times and therefore have significant utilitarian value. 

33Going to the background of the offending, Mr Stafford dealt with it in this way:

The Department delivers education and development services to children, young people, and adults: directly through government schools; and indirectly through the regulation of funding of early childhood service, non-government schools, and training programs. 

The Department implements Victorian government policy on early childhood services, school education and training and higher education services. 

The Department also manages Victorian government schools in primary and secondary education.  There are 1553 Victorian government schools with a total of 648,044 students (as at February 2021) and 80,809 staff employed (as at June 2021). 

34I think those are important statistics, particularly given the relatively small and relatively less serious prior criminal history of The Department in WorkCover health and safety issues.

35As I noted earlier, Warringa Park School is a combined specialist and special development school located in Hoppers Crossing.  In 2018, there were 528 students enrolled at the school across the three campuses.  The student enrolment in 2018 at the main campus of Warringa Park was about 320.  In 2018, 18 students across those three campuses required the use of a wheelchair.

36The teachers at Warringa Park are all trained professional educators.  In particular, the classroom teacher had been employed at the school since 2016, prior to which she undertook relief teaching.  She held all necessary qualifications and training to perform the role of primary school teacher at the school, and had been Jovan’s teacher for two years.

37The education support worker had completed the Certificate IV in Disability in order to work as an education support worker and had worked casually at the school for three years as at November 2018.  The student teacher was undertaking a Masters of Teaching at Victoria University which she commenced immediately after completing her Bachelor of Sport Science in teaching which she had commenced in 2014.

38During her studies, she worked two days a week at the school.  She had also undertaken training with Victoria University in Adapted Physical Education, which dealt specifically with teaching students with special needs.

39In dealing with the legal principles for assessing gravity of the breach, Mr Stafford said:

It is plainly accepted that the incident involving Jovan on 26 November 2018 was serious and has had a profound impact on his family and the School community and that his passing was a tragic loss. 

The assessment of the degree of culpability or seriousness of an offence under the Act must not be measured by its outcome.  There is clear and repeated authority for this, as set out below.  It is respectfully submitted that when the relevant principles are applied correctly to the circumstances in this case, the alleged conduct and omissions prior to the incident on 26 November 2018 are at the moderate level of culpability in terms of comparable non-compliances ith the Act. 

The Victorian Court of Appeal has provided strong guidance on the approach to be taken to assessing the ‘seriousness’ of a risk-based offence under the Act.  The gravity of a breach is informed by:

(i)the likelihood of a risk materialising;

(ii)the consequence if it did; and

(iii)the extent to which an accused failed to take all reasonably practicable steps to reduce that risk. 

The consequences of a risk-based offence, in any given case, is relevant only in so far as it can demonstrate the potential seriousness of a risk if it materialises.  Where a risk-based offence results in injury or death, for example, it does not aggravate the objective gravity of the offence; it is evidence of the comparative nature of the risk.

40I accept that submission.

41Mr Stafford went on to quote a passage from Dotmar Epp Pty Ltd v The Queen[1] in which the court said:       

Hence, in determining the gravity or seriousness of the offence, the sentencing court must assess, first, the extent of the departure from the duty owed; secondly, the extent of the risk to health and safety thereby created; and thirdly, the likelihood or risk of particular harm resulting.  Put another way, in a case such as the present [which was that case] the gravity or seriousness of a breach is to be measured by reference to the potential consequences of the breach; the extent of the evidenced disregard for the safety of employees; and the risk of the potential consequences of the breach materialising.

[1]   Dotmar Epp Pty Ltd v The Queen [2015] VSCA 241 at [22] – [23]

42He then referred to DPP v Frewstal Pty Ltd[2], in which the court set out the following principles: 

(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 Occupational Health and Safety Act, not according to the result or consequences of the breach. 

[2]DPP v Frewstal Pty Ltd [2015] VSCA 266 at [127]

(b) 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. 

(c) 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). 

(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.

43I accept and endeavour to follow the guidance from the Court of Appeal based on those principles.

44Mr Stafford went on to make submissions about the gravity of the breach in this case by saying, first:

By its plea, the Department accepts that the consequences of the pleaded risk was serious injury or death. 

In relation to Charge 1, the Department by its plea accepts that the risk created by the hazard of the non-compliant interface between the ramp and the concrete.  The Department also accepts by its plea that the reasonably practicable measure available to the Department to reduce, if not eliminate, the risk was to ensure that the ramps at the School were professionally assessed and maintained. 

The question of knowledge is relevant in assessing the extent to which the Department has departed from its duty and therefore the seriousness of the breach.  In relation to the question of knowledge, the Department was not aware of the non-compliance prior to November 2018. 

It is also not the case that the Department was on long standing notice of the non-compliance, or prior incidents, and had taken no steps to address it.  … There is no evidence to say how long, or briefly, the non-compliance had been present.  Therefore, unlike the circumstances [in] case such as Amcor[3], there was not only no actual knowledge of the non-compliance, but there is certainly no allegation, or evidence, that it was longstanding or had been wilfully ignored while others were put at risk.

[3]Director of Public Prosecutions v Amcor Packaging Australia Pty Ltd (2005) 11 VR 557

45I pause there to say that it seems to me, looking at the photograph and looking at the evidence as a whole, that the defect, the nature of the non-compliance, was readily observable by persons using the ramp, and particularly if a supervisor was wheeling a wheelchair: that disconnect between the ramp and the ground floor would have been noticeable.

46That is not to say that The Department, beyond the school, was aware of that.  But had The Department engaged in the kind of audit process that it put in place thereafter, it would have been readily apparent and it could have been readily rectified.  Mr Stafford went on, ‘There’s no evidence of how long the ramp may have been non-compliant.’  With respect, it seems to me looking at the photographs, that the condition of the ramp had been in that state for not a short time.

47It is impossible to say how long, but it did not look to me like a new ramp.  To the extent it is suggested that there is no evidence, I think there is some evidence to be derived from the photographic evidence of the ramp as to the nature of the non-compliance.  It was submitted by Mr Stafford that the departure from its statutory duty was not of a high degree, unlike the circumstances in the case of Amcor which was obviously of a higher degree.

48It seems to me that given the nature of the school, the range of disabilities that the school had to cater for and the fact that there were a number of students between the three campuses who were wheelchair-bound, it was particularly important for The Department to have audited the health and safety of the school in a comprehensive manner.  That would have included an assessment of the quality and safety of each of the ramps at special schools in particular.

49Dealing with Charge 2, Mr Stafford indicated that The Department accepts that there was not adequate instruction or training in relation to staff in specific care plans and risk assessments concerning Jovan relating to supervision, and that this created the risk arising from him being unsupervised in his wheelchair.

50Mr Stafford went on to say, ‘It is true that the question of foreseeability does not normally depend on whether the precise accident was foreseeable.’  But that is not his submission in this case.  The submission that Mr Stafford put relates to the absence of specific knowledge of the non-compliance in the construction of the ramp and its non-compliance with relevant building standards.

51Dealing with Charge 2, it is to be readily appreciated that the school was dealing with a range of people with a range of significant disabilities, and clearly one of the students was known to have very significant difficulties and disabilities, that being Jovan.

52In those circumstances, the risks that the school was dealing with on a daily basis when he was at school were akin to those of a young child, a toddler.  Anybody who has been a parent would readily understand the dangers of almost any object to an unsupervised toddler, including merely walking on a perfectly flat concrete surface.

53For a situation to be permitted on this occasion to exist, of a student with Jovan’s disabilities negotiating the ramp without being supervised and without a responsible adult holding the wheelchair throughout the negotiation of the ramp, was fraught with danger.  There was an obvious risk of at least serious injury, if not death, with a concrete surface at the bottom.

54The situation required an appreciation of that risk and a proper degree of training and supervision and appreciation of the risks to be conveyed to all who were charged with the responsibility of ensuring that Jovan got through his day at school without injury of any kind, but particularly serious injury or death.

55In those circumstances it seems to me that, although the staff, and particularly the student teacher, were blameless on the day and that the circumstances, as Mr Stafford rightly points out, which led to the incident arose suddenly and unexpectedly on the day, the lack of training of those who were the adults present on the day and, as it happened, the student teacher in particular, undoubtedly was a significant contributor to the death that occurred.

56It seems to me it was reasonably foreseeable for The Department that, absent a high degree of training, accidents of that kind were likely to occur involving people with such a high degree of disability at a school which was charged with the responsibility of caring for such children on a daily basis. 

57Mr Stafford went on to deal with the post-incident conduct and remorse, and I accept entirely that The Department is remorseful.

58It seems to me that The Department has done a great deal since the incident to remedy the defects which are the subject of the charges and has spent a deal of money, time and effort in ensuring that this does not happen again and that a ‘belt and braces’ approach is taken to all aspects of ensuring that there is no such occurrence ever again.

59I accept that The Department has responded appropriately and has gone the extra mile in ensuring that the defects exposed by this case are remedied. 

60Dealing with the prior court attendances by The Department.  Whilst Mr Stafford points out they are admitted, they do not support a conclusion, in his submission, that specific deterrence has a significant role in sentencing in this case.  He says they do not demonstrate a pattern of offending.  Of the prior matters, only that of 16 July 2009 relating to an unguarded router could be said to have any similarity in that it concerns a student.  This record of The Department should be placed in the context of the numbers and different classes of persons and activities involved in the vast undertaking of The Department and the myriad of potential risks arising from the substantial undertaking.  The prior history is of now very ancient vintage in that the last of the court appearances was about 10 years ago. 

61I have already indicated that I have received assistance both from Mr Stafford and his instructing solicitors and the prosecution to determine current sentencing practice in cases such as this.  Every case of this kind has to be determined on its own merits and one can only glean limited assistance.  But the assistance I have been given has been significant and is much appreciated.  The prosecution filed written submissions in response.  I am not going to go through those in detail.  They repeat the principles and accept that the principles to which I referred from Mr Stafford’s submissions in relation to DPP v Frewstal Pty Ltd apply to this case.

62The prosecution then went on to submit that by applying those principles, it should be concluded that the gravity of the breaches represented by the two charges on the indictment is at a high level.  Secondly, the extent of the departure from their statutory duty is high, given Warringa Park School is a designated state government special school.  The extent of the risk of death or serious injury which might result from the breach was self-evidently high.  Thirdly, the likelihood of the occurrence of an event as a result of the breach endangering the safety of others was high, given the number of students suffering from individual vulnerabilities.  The potential gravity of the consequences was also high.  I accept those submissions.

63The risks to a child with Jovan’s disabilities, if he were permitted without adult assistance to negotiate the ramp as I have already indicated, were substantial and obvious.  Those risks would have been present whether or not the join between the bottom of the ramp and the concrete surface below had been compliant.

64The reasonable foreseeability that an unguided, runaway wheelchair would have tipped over at the bottom of the ramp for some other reason, including a collision with another disabled child, for example, was present.

65The non-compliant construction of the bottom of the ramp was, in this case, a significant contributing factor to the death.  The deficiency of the construction, with the unevenness of the join between the ramp and the concrete, must have been readily apparent to staff assisting any wheelchair bound child to negotiate the ramp.

66The dual risks arising from the admitted breaches particularised in Charges 1 and 2 of death or serious injury were, in my judgment, reasonably foreseeable.  They were the more acute for a young child with Jovan’s severe disabilities.  Neither breach should have occurred.

67However, as is the nature of accidents involving the death or serious injury of children, with or without disabilities, momentary distractions can lead to a departure from usual and generally well-engrained protocols with dreadful consequences.  Such a departure occurred in this case.  The confluence of the two breaches represented by Charges 1 and 2 respectively led to this tragic death.

68I accept, as I have indicated already, that The Department has taken significant steps to address the breaches which led to Jovan’s death, and to strengthen in an appropriate manner the protocols which apply to all students in their care with disabilities.  The Department has expressed appropriate remorse, and having regard to the relatively few previous court appearances for breaches of the Occupational Health and Safety legislation, I do not regard specific deterrence as a significant sentencing consideration.

69I must however give proper weight to the principles of denunciation, just punishment and general deterrence.  I have done my best with the considerable assistance of both parties to identify current sentencing practice as it applies to this case derived from reference to the comparable cases to which I was referred.

70Weighing all these factors, The Department is convicted on each of Charges 1 and 2, and for both charges I impose an aggregate fine of $200,000.  It seems to me that these are cases which do fall within the parameters of the section which deals with the provision of an aggregate fine in cases of this kind.

71Pursuant to s6AAA of the Sentencing Act, I declare that but for The Department’s pleas of guilty, I would have imposed an aggregate fine of $300,000 with conviction on each charge. 

72Are there any other matters that I need to deal with?

73MR STAFFORD:  I have instructions to seek a two-month stay at this stage.

74HIS HONOUR:  I’ll order a stay of two months on the payment of the fine.

75MR STAFFORD:  As Your Honour pleases.

76MS DEVANNY:  As Your Honour pleases.

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