Director of Public Prosecutions v The Crown in the Right of the State of Victoria (DFFH)
[2022] VCC 1221
•5 August 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-01721
CR-19-01723
| DIRECTOR OF PUBLIC PROSECUTIONS | Prosecution |
| v | |
| THE CROWN IN THE RIGHT OF THE STATE OF VICTORIA (DEPARTMENT OF FAMILIES, FAIRNESS AND HOUSING) (ABN 88 139 482 080) | Defence |
AND
| VICTORIAN PERSON CENTRED SERVICES LTD (ACN 152 848 452) | Defence |
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JUDGE: | Her Honour Judge Hawkins | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 June 2022 | |
DATE OF SENTENCE: | 5 August 2022 | |
CASE MAY BE CITED AS: | DPP v The Crown in the Right of the State of Victoria (DFFH) & Anor | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1221 | |
SENTENCE
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Subject:Criminal Law – SENTENCING
Catchwords: First offender pleaded guilty to failing to ensure, as an employer, that persons other than employees were not exposed to risks to their health and safety –– general deterrence – post offence conduct – balance between best practice management for child’s wellbeing and staff physical safety – early plea – COVID 19 considerations – no prior convictions – low gravity of offending
Legislation Cited: Occupational Health and Safety Act 2004 s2(1), s4, s20(1), s20(2), s20(2)(a) s21(1), s21(2)(a), s 21(2)(e), s23(1), s33; Sentencing Act 1991 s6AAA
Cases Cited:R v Australian Char Pty Ltd [1999] 3 VR 834; Chugg v Pacific Dunlop Ltd (No 2) [1999] 3 VR 934; DPP v Amcor Packaging Australia Pty Ltd (2005) 11 VR 557; DPP v Coates Hire Operations Pty Ltd [2012] VSCA 131; Workcover Authority (NSW) v Profab Industries P/L (2000) 49 NSWLR 700; Orbit Drilling Pty Ltd v The Queen (2012) 35 VR 399; Dotmar Epp Pty Ltd v The Queen [2015] VSCA 241; DPP v Frewstal Pty Ltd [2015] VSCA 266; DPP v Vibro-Pile (Aust) Pty Ltd [2016] VSCA 55; R v FRH Victoria Pty Ltd [2010] VSCA 18; Worboyes v The Queen [2021] VSCA 169; The Crown in Right of the State of Victoria (Department of Justice and Community Safety) (4 November 2021, Magistrates’ Court of Victoria, Melbourne)
Sentence:Both offenders sentenced to a fine of $55,000 without conviction – Section 6AAA declaration of a fine of $110,000 with conviction for both offenders
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | A Palmer QC & A French | Office of Public Prosecutions |
| For the Accused (DFFH) For the Accused (VPCS) | D Neal SC & M Mclay S Stafford & K Grinberg | Norton Rose Fulbright K & L Gates |
HER HONOUR:
1The offending that is the subject of these proceedings relates to the risk of occupational violence by a young person, “Ben”,[1] against his care workers in a residential care home in Moe.
[1] A pseudonym
2The circumstances of the offending are set out in detail in the Summary of Material Facts for Plea dated 7 June 2022,[2] the accuracy of which the Department of Families, Fairness and Housing, (“DFFH”) and Victorian Person Centred Services Ltd (“VPCS”) accepted through their counsel.
[2]Exhibit A
DFFH/DHHS
3DFFH is the successor of the Disability and Child Protection Services division of DHHS, and as such is the current responsible agency named on the indictment. They are responsible for providing out of home care to children who are not able to continue to reside with their families or other suitable persons.
4I will herein refer to DFFH as “the Department” or the Department of Health and Human Services (“DHHS”), as that was its relevant title at the time of the offending.
VPCS
5VPCS is registered as a charity and is the legal successor to the Victorian Person Centred Services Inc which was formed as a charitable unincorporated association in 1986 and became a registered body in 2011.
6The VPCS constitution, current in 2016, referred to the Associations’ principal purposes:
“to deliver high quality and innovative programs and services to meet the needs of people with disabilities or who experience other significant social and economic disadvantage; and
to maximise the range of choices and opportunities to enrich the quality of the lives of the users of services.”[3]
[3]Exhibit B1
7Consistent with its’ constitution, VPCS provides services to young people in out of home care across Victoria, as well as disability services and supports.
8VPCS has been a longstanding entity in a sector with a significant and varied risk profile, providing services across a range of locations and settings.
9In 2016, VPCS had a comprehensive OH&S regime in place at the relevant time including relevant policies, procedures, training, inductions, incident and hazard reporting, a health and safety manager and co-ordinators, and external consultants to support staff.
10VPCS was certified as compliant with the Department’s Human Service Standards and had certification under ISO9001:2015 Quality Management System Requirements.[4]
[4] Ibid
Background
11“Ben” is a young person who came to the attention of child protection services in approximately 2011 when he was reported to be showing concerning behaviours.
12He became an active case in around February 2015 having been diagnosed with an intellectual disability, attention deficit hyperactivity disorder, post-traumatic stress disorder, conduct disorder, and pervasive developmental disorder. He was noted as being “…a risk to the community, to himself and to his family, particularly his mother, through his violence, threatening and aggressive behaviours.…” His child protection complex client consultation report further warned “[Ben] does not fear or consider consequences to his actions”.[5]
[5] Exhibit A
13Various mental health and culturally specific services were engaged to intervene. That assistance was made more challenging due to Ben’s intellectual disability which included a functional IQ of 40.
14In March 2015, Ben’s father, died suddenly from heart failure. Ben was present when he died and struggled to understand the circumstances, including misinterpreting his mother’s attempts at CPR as an assault. Following the death, Ben’s mother’s alcohol use escalated and was recognised as a trigger of the subsequent escalation of Ben’s behaviour.
Ben was placed into the custody of DHHS
15In March 2015, it was determined that Ben should not remain in the family home due to his mother being unable to care for him.
16On 30 April 2015, The Childrens’ Court placed Ben on an Interim Protection Order,[6] such that the Secretary of the DHHS was invested with responsibility for the supervision and welfare of Ben.
[6]Ibid
Circumstances of Offending
17DHHS’ involvement intensified after the death of Ben’s father who had provided his primary support. In April 2015, Joanne Wilson, Behavioural Specialist Support Worker for the DHHS, prepared a Behaviour Support Plan (BSP) to:
(a) Identify triggers likely to cause behaviours of concern;
(b) Document ways in which the behaviours could be avoided; and
(c) If they were to occur, ways in which the behaviours could be de-escalated.[7]
[7]Ibid
18DHHS determined that, due to his challenging behaviour, Ben could not be placed in a group home environment. Consequently, for approximately two weeks in May 2015, he resided in an emergency placement by himself in Sale. Here he was cared for by DHHS funded staff on a one to one basis.
19Ben displayed physically aggressive behaviour towards his carers and damaged property at the Sale home. It was decided that he needed to be looked after by two carers during the day (and continue with one carer overnight).
Engagement of VPCS
20In late May 2015, VPCS provided care to Ben at a home in Moe on a contingency basis, as it was hoped that he would be able to return to the family home. Ben was extremely violent, made threats to kill and harm others, and damaged property. It was noted that not knowing the workers, people of colour, people drinking alcohol and people smoking were triggers for Ben.
21The Behaviour Support Summary (BSS) prepared noted that “[s]taff are not to go to the office but remove themselves from the room and monitor from close proximity”, and “[s]taff are to always be aware of their exits so they can exit quickly if needed. Staff are not to lock themselves in the office unless … [Ben] will not stop” (Emphasis added).[8]
[8]Ibid
22On 7 July 2015, The Childrens’ Court granted sole custody of Ben to the Secretary of the DHHS.
Placement at a second home in Moe
23Due to concerns raised by the residents living next door to the first home, Ben was moved to a second home in Moe. Further behavioural management and support plans were prepared. Staff attrition was high and it was difficult to cover shifts, particularly given this location in regional Victoria.
Plan to transition Ben to a third out of home care home
24In around June 2016, the DHHS decided that Ben would be placed at a home in Traralgon. The use of the Traralgon home was intended to provide Ben with a permanent home and with more consistency of trained and experienced staff.
25Further behavioural management and support documentation was prepared for Ben.[9] Again, this documentation provided advice that “staff are not to go to the office but remove themselves from the room and monitor from close proximity (emphasis added).”
[9]Consisting of the BSP, Behaviour Management Plan (‘BMP’), BSS and Intervention, Support and Response Plan (‘ISRP’) that had been created in April – August 2015
Exposure to Risk/Use of Office as a Refuge[10]
[10]‘Use of Office as a Refuge’ is a fact either only relevant to the charge against VPCS or only agreed between the Director and VPCS
26While Ben was residing at the second home in Moe, he punched, kicked and behaved aggressively towards staff on different occasions over a number of months. At times staff sought refuge in the office. Ben also damaged the home, including causing holes in walls and doors. These incidents intensified in the latter period of his care when new staff began working with him so that he could transition to care at a more permanent home.
27By way of background, prior to the charged period, these incidents included three occasions in March and May 2016 where Ben punched his worker, who was then forced to seek refuge in the office.
28During the period covered by the charge, the following incidents occurred:[11]
(a) On about 25 June 2016, an employee was in the office with the door locked. He thought that the procedure was that “if …[Ben] became violent… to disengage and to lock yourself in the office”.[12] Ben attended the office. The worker opened the office door and was assaulted by Ben in the office;
(b) On the evening of 14 July 2016, a female worker of Sudanese descent, was directed by the Team Leader[13] to work the overnight shift at the second Moe home.[14] She had not previously met Ben[15] and was told that she would not have to interact with him as he would be asleep for the entirety of her shift;[16] The Team Leader did not advise her that people of African descent were a trigger for Ben.[17] At around 10pm, Ben knocked on the office door and asked the worker to open it. Upon seeing the worker, Ben questioned whether she was Indian and the worker said she was not. He repeatedly told her he did not want her there. Ben spoke with the Team Leader on the telephone and made a threat to kill the worker. The Team Leader asked the worker how she was and she said she was ok.[18] The Team Leader instructed the worker to stay in the office, lock the door and to call him if anything else happened. The next morning, Ben told the worker that he wanted to go outside. As the worker opened the front door, Ben punched her in the face. He ran out of the house and was yelling at her.[19] As a result of the incident, the worker sustained a swollen upper lip, had difficulty opening her jaw and was also psychologically affected;[20]
(c) On 25 July 2016, a fourth worker was working the day shift at the second Moe home and was subjected to physical violence by Ben, during which he removed himself to the office and telephoned Moe police station;
(d) On 28 July 2016, the Team Leader was working with a fifth worker when he was subjected to physical violence by Ben. The Team Leader went to the office to disengage;
(e) On 1 August 2016, the fifth worker attended the second Moe home to work her first sleepover shift. She had worked with Ben on around 3 occasions prior to that date. Ben repeatedly said he did not want her there. Overnight, Ben knocked on the wall between his bedroom and the office, and the office door every 1 to 2 hours, yelling about whether it was time to wake up. The worker was frightened and stayed in the office. When she came out of the office the next morning to give Ben his medication, he assaulted her in the kitchen. The worker went to the office, locked the door and telephoned police;
(f) On 8 August 2016, a sixth worker arrived at the second Moe home at approximately 4pm to commence a sleepover shift. She was assaulted outside the house and again when she entered. She then spoke to her supervisor, who told her to go to the office and lock the door. The next morning, Ben entered the office and assaulted the worker again. She then remained in the office until the next worker arrived to commence her shift;
(g) On 9 August 2016, a seventh worker attended the second Moe home at approximately 7.30am to work her first shift. Ben yelled at her, telling her that he did not want her there and to leave. The worker telephoned her Manager, and told her she did not feel safe. The worker decided to remain in the office until the end of her shift. In the afternoon, a handyman arrived at the home to fix the office door. While the door was being fixed, Ben entered the office and assaulted the worker.
[11]A fact only relevant to the charge against VPCS
[12] Exhibit A
[13]A fact only relevant to the charge against VPCS
[14]Ibid
[15]Ibid
[16]Ibid
[17]Ibid
[18]Ibid
[19]Ibid
[20]Ibid
29As a result of this final incident, Ben was sent to a Secure Welfare Service as a temporary measure and WorkSafe was notified. In early September 2016, VPCS formally relinquished care of Ben. In approximately January 2017, WorkSafe commenced an investigation into incidents of occupational violence involving the residential care workers.
The plea indictment
30On 23 June 2022, The DFFH pleaded guilty to one charge of failing to ensure, as an employer, that persons other than employees were not exposed to risks to their health and safety. This is contrary to section 23(1) of the Occupational Health and Safety Act 2004 (‘the Act’). The particulars of this charge allege that it was reasonably practicable for the DFFH to reduce the risk of injury to residential care workers by ensuring that the behavioural management and support documentation for the child did not discourage workers from taking refuge in the office when the child engaged in threatening behaviours.[21]
[21]Indictment no. C1912914.3 charge 1, particular 8
31On that same date, VPCS pleaded guilty to one charge of failing to provide and maintain safe systems of work, contrary to sections 21(1) and 21(2)(a) of the Act. This charge alleges two contraventions which have been charged as a single offence, pursuant to section 33 of the Act. The particulars of this charge allege that it was reasonably practicable to reduce the risk of injury to residential care workers by providing and maintaining systems of work in which:
(a) The behavioural management and support documentation for the child did not discourage workers from taking refuge in the office when the child was engaging in threatening behaviours; and
(b) Recognised that residential care workers should not be rostered on if they were at greater risk of assault by the child because of their skin colour and the fact that they had not previously worked with him.[22]
[22]Indictment no. C1912914.3 charge 2, particulars 8(a),(b)
Duties imposed by the Act
32The Act imposes a number of duties on people involved in work and workplaces. Those duties are to be interpreted in light of the objects of the Act set out in section 2(1), and the “principles of health and safety protection” set out in section 4.
33Relevantly, those objects include:
(a) To secure the health, safety and welfare of employees and other persons at work; and
(b) To eliminate, at the source, risks to the health, safety or welfare of employees and other persons at work.[23]
[23] Section 2(1) of the Act
34Section 23(1) of the Act imposes a duty on an employer to ensure that persons other than employees of the employer are not exposed to risk to their health or safety arising from the conduct of the undertaking of the employer.
35Section 21(1) imposes a duty on an employer to provide and maintain a working environment for its employees that is safe and without risks to health. That duty will be breached if an employer fails to provide and maintain systems of work that are safe and without risks to health.[24]
[24]Section 21(2)(a) of the Act
36These duties are not absolute and will be satisfied if the employer has done everything that was reasonably practicable to do. The requirement of reasonable practicability is to be interpreted in light of section 20(1), which requires a duty holder to eliminate risks to health and safety, so far as is reasonably practicable. If it is not reasonably practicable to eliminate the risks, then the duty holder must reduce them so far as is reasonably practicable (emphasis added).
37In determining what is reasonably practicable, the court is required to have regard to the matters set out in section 20(2). The requirement is not assessed subjectively according to the knowledge and particular circumstances of the employer, but is determined objectively.[25]
[25]See R v Australian Char Pty Ltd [1999] 3 VR 834; Chugg v Pacific Dunlop Ltd (No 2) [1999] 3 VR 934
Relevant Sentencing principles
38The Prosecution Submissions helpfully set out the relevant sentencing principles in this case. I draw from them.
39In occupational health and safety prosecutions, the objective seriousness of the contravention constitutes the primary factor in determining the appropriate penalty. Mitigating factors that are subjective to the accused – such as a plea of guilty, remorse or previous good character – play a subsidiary role.[26] In particular, the presence of such subjective factors “should not be permitted to produce a sentence which fails to adequately reflect the seriousness of the offence”.[27]
[26]DPP v Amcor Packaging Australia Pty Ltd (2005) 11 VR 557 at paragraph [35]; DPP v Coates Hire Operations Pty Ltd [2012] VSCA 131 at paragraph [64]
[27]See DPP v Amcor Packaging Australia Pty Ltd (2005) 11 VR 557 at paragraph [35], quoting with approval Workcover Authority of New South Wales v Profab Industries P/L (2000) 49 NSWLR 700 at page 714
40Furthermore, the objective seriousness or gravity of a contravention is not determined by its consequences, but by the extent of the employer’s failure to meet their duties under the Act.[28] The extent of the accused’s failure to meet their duties is itself determined by three factors:[29]
(a) First, the extent of the departure from the duty owed, in particular “the measure of evidenced disregard concerning … safety”;[30]
(b) Second, the extent of the risk to health and safety thereby created. In particular, “the foreseeable potential consequences”[31] of the breach; and
(c) Third, the likelihood or risk of potential harm occurring.
[28]Orbit Drilling Pty Ltd v The Queen (2012) 35 VR 399 at paragraph [62]; Dotmar Epp Pty Ltd v The Queen [2015] VSCA 241 at [22] (Priest JA, Maxwell P and Kaye JA agreeing)
[29]See Dotmar Epp Pty Ltd v The Queen [2015] VSCA 241 at paragraph [23]; DPP v Frewstal Pty Ltd [2015] VSCA 266 at paragraph [127]
[30]DPP v Amcor Packaging Pty Ltd (2005) 11 VR 557 at paragraph [35]
[31]Ibid; Dotmar Epp Pty Ltd v The Queen [2015] VSCA 241 at paragraphs [22]-[23]
41In cases where the potential consequences of a breach include the possibility that someone could be killed or seriously injured, general deterrence will normally assume considerable significance.[32] As the Court of Appeal acknowledged in DPP v Vibro-Pile (Aust) Pty Ltd:
“… general deterrence is of particular importance in offending of this kind. The sentences imposed need to draw attention to the importance of workplace safety, and to send a message to employers that failure to eliminate or mitigate safety risks will attract significant punishment.” [33]
[32]DPP v Amcor Packaging Pty Ltd (2005) 11 VR 557 at paragraph [36]
[33][2016] VSCA 55 at paragraph [233]
42This is so even in the absence of factors pointing to the need for specific deterrence. As Neave JA observed in R v FRH Victoria Pty Ltd:
“Because the company has a good safety record and has put additional safety measures in place since Mr Cock’s death, I would not give great weight to specific deterrence. By contrast, general deterrence must be given significant weight in sentencing employers for breach of occupational health and safety requirements.”[34]
[34][2010] VSCA 18 at paragraph [76]
43The parties accept that general deterrence is the most important sentencing factor in this case despite the fact that neither accused have prior convictions and otherwise have comprehensive OH&S regimes in place. They have also continued to review and enhance safety measures across their operations.
It was reasonably practicable to further reduce the risk of injury to the workers
The tension between trauma informed best practice and OH&S obligations – the discouragement of seeking refuge in the office
44By virtue of a childhood of disadvantage, trauma and intellectual disability, Ben as a young person exhibited extremely challenging and often violent behaviour. His behaviour was compounded by the fact that he was experiencing a particularly unsettled and difficult time following the death of his primary support figure, his father. However, despite this behaviour, Ben was not charged with any crime, nor detained in secure welfare or a custodial setting at the relevant time.
45The challenge of how to look after such a young person in a caring, compassionate but safe manner is an extremely difficult one. Ben, like all children, responded better to face to face human contact. He could not be expected to thrive if he was deprived of such contact. But such an approach carries inherent risks to the safety of those caring for him.
46Workers in a residential care setting are owed the same obligation by their employer to be provided with a safe work place and safe work practices as any other worker. They should not be expected to endure assaults, threats and abuse by virtue of their occupation. It is valuable and essential work to support some of the most vulnerable members of our community, but it is a very difficult occupation. It is also a very difficult balancing act for those responsible for the care of such children to get the balance between trauma informed best practice and OH&S obligations right. This case is an example of that tension.
47The charge alleges that the documentation available to staff about how to manage Ben’s behaviour discouraged them from using the office as a refuge. This was done in attempt to modify Ben’s behaviour whilst still replicating a home like setting, rather than treating him like a prisoner. The behaviour support documentation was developed by qualified professionals who were experienced working with Ben, developed in good faith and in very challenging circumstances. Their instructions were provided with the aim of effectively managing Ben’s behaviour to reduce risk both to workers and Ben himself. The workers employed by VPCS were appropriately trained and qualified to work with Ben. I note that they did actually seek refuge in the office on occasions.
48Dr Danny Sullivan, Consultant Forensic Psychiatrist in his report dated 30 May 2022 reviewed this case and examined this tension.[35] He discussed the importance of providing a “home like environment” for children in Ben’s situation, as compared with a sterile, institutional setting. He opined:
“A ‘home-like environment’ is an important element of residential care settings for children. Cold, sterile and inhospitable institutional settings are likely to reduce satisfaction and wellbeing. A home-like environment is also intended to maximise the potential that placement can be rehabilitative and involve the development of new skills and age-appropriate leisure activities. Finally, for young people who have had traumatic backgrounds, such an environment is intended to provide opportunities for people to manage their own moods by choosing whether to socialise or to isolate themselves from others and enable staff to provide a range of tailored interventions depending on a person’s needs. Finally, a home-like environment will often involve a suburban residential setting which provides opportunity for leisure activities which are similar to the rest of the community, rather than relying upon institutional responses.” [36]
[35] Exhibit A1
[36]Ibid at paragraph [68]
49Therefore, it was considered that the trauma informed treatment program, including being housed in a “home like environment” was essential for Ben’s long term management. Dr Sullivan confirmed that there was a risk that staff retreating to the office and locking the door would exacerbate Ben’s behaviour and trigger his feelings of frustration and isolation.[37] Hence, the documentation discouraged staff from retreating to the office when Ben’s behaviour escalated.
[37]Ibid at paragraphs [74], [76] and [82]
50Counsel for both accused submit that the strategies staff were directed to employ should be seen in context. The document outlines a series of measures available to use in different situations and to redirect and calm Ben, against a background of his known or emerging triggers. Maintaining personal contact in the house throughout the day was seen as fundamental to the therapeutic objectives of the placement.
51The plea by both accused was entered on the basis that the wording of the relevant paragraph of the Behavioural Support Summary drew the balance too much in favour of not using the office as a retreat, or could have been more informative of the reason for that advice. DHHS and VPCS accept that it was reasonably practicable to have provided a more nuanced instruction to workers in relation to seeking refuge in the office by weighting its’ documentation more in favour of staff seeking refuge.
52The plea by the Department accepts that it had oversight of the primary documents being used by VPCS and also accepts that it did discourage use of the office as a refuge.
Rostering workers whose attributes and lack of familiarity were known to trigger Ben
53VPCS by its’ plea also accepts that it was reasonably practicable to avoid rostering the female worker of Sudanese descent on her first shift with Ben on 14 July 2016.
54VPCS points to the particular difficulty in covering the shift on that evening, and the general difficulty faced by it in securing staff to care for Ben. The home’s location in regional Victoria and Ben’s challenging behaviours contributed to this difficulty. VPCS submits that a risk assessment was made and that the worker would not have to interact with Ben as he would be asleep during her shift. Clearly that was inaccurate.
55Even in difficult circumstances, the safer practicable step was to ensure a different employee covered the shift that evening. Lack of adequate staffing provides no excuse to depart from an employer’s OH&S obligations.
Post offence conduct
DHHS
56There has been a fundamental shift in the Department’s model of care for young people with disabilities since this offence. Dr Neal QC for DHHS submits that the introduction of the National Disability Insurance Scheme (`NDIS’) means that a circumstance such as Ben’s is far less likely to arise in the future. NDIS funding allows for intensive supports within the family prior to the need for DHHS involvement. A young person like Ben could expect to receive a NDIS package that would include behavioural support therapists, a psychologist and occupational therapists who would have worked with him for some time prior to his transition into care by the Secretary.
57The recent Royal Commission into disability services documented large funding gaps in government care. These gaps are particularly acute in rural and regional areas. Dr Neal submits that at the time of this offence, striking the balance between ensuring optimal therapeutic outcomes, imposing restrictions on a young person and protection of those that care for them is extremely difficult. The Court has regard to the extensive range of services which were provided to Ben.
VPCS
58VPCS recommenced providing out of home care in January 2022 after an unrelated hiatus. It also provides community-based adult disability services in Victoria. VPCS currently employ 476 staff, 207 of whom are casual.[38]
[38] Exhibit B1
59Since 2016, and as part of VPCS’ continued focus on OH&S, further policies have been developed and ongoing improvements made to existing policies. They include:
(a) All new staff undergo a 2-day induction training program that covers many policies and procedures relevant to workplace violence including Positive Behaviour Support & Restrictive Practices and Management of Actual or Potential Aggression (MAPA); and
(b) Care planning procedures and recording of information is completed for each resident and includes information such as communication strategies, risk profiles, Behavioural Support Plans & medication.
60Existing staff are inducted into new sites and provided information in relation to new customers. In addition, an ‘All About Me’ document outlines in a brief, easy to read format, the likes, dislikes, goals and characteristics of VPCS customers. This document is available to all staff working with a person, so that staff are alerted to possible triggers and behaviours that need to be proactively managed.
61The Work Related Violence Policy:
“is a general policy that applies across all areas of the organisation. It instructs VPCS staff that where the risk of harm and injury is too great or if the situation escalates to a point that staff are not able to manage with the resources available, they are to remove themselves and others from the immediate environment to a safer location”.[39]
[39]Ibid
62The Policy also provides that “in situations where the aggressor’s behaviour continues to escalate, it may be necessary to retreat further, [or] evacuate entirely.”[40]
[40]Ibid
63VPCS provides specific training to staff in relation to dealing with violence in the workplace. The Managing Actual or Potential Aggression (MAPA) training provides strategies and skills to safely respond to anxious, hostile or violent behaviour. The Positive Behaviour Support and Restrictive Practices training addresses ways to respond to concerning behaviour. Staff are trained in these programs as part of the induction process, and also in annual refresher training.
64The corporate umbrella under which VPCS sits has an extensive safety management system that includes:
(a) A health and safety database;
(b) Health and safety representatives, work health safety committees and Union engagement; and
(c) A duress alarm platform with devices deployed to high risk services.
Gravity of the offending
65To summarise, the Department and VPCS’ pleas of guilty acknowledge that despite the complexity of caring for Ben, it was important that staff not be discouraged from taking refuge in the office when they felt unsafe.
66The second contravention in the rolled up charge for VPCS is the more serious breach in my view. It is concerned with the decision to roster a residential care worker of Sudanese background whom had never met Ben, by herself, on a sleep over shift, in circumstances where it was known that Ben’s aggressive and violent behaviour was triggered by:
(a) Workers with whom he was unfamiliar; and
(b) People of Aboriginal, African or Asian descent.
67The staffing difficulties faced by VPCS provide no justification or excuse to depart from the obligation to provide a safe workplace for all employees. This contravention objectively involved a clear, foreseeable and serious risk of injury to the worker. It was a significant departure from acceptable safety standards by VPCS.
68The Director has acknowledged the complexity of providing care for Ben and does not submit that the Department and VPCS’ contraventions involved a complete disregard for the safety of the workers caring for Ben. Rather, the Director submits that the contraventions involved a failure to give sufficient weight to the workers’ safety, such that the balance between caring for Ben and the safety of staff was tilted too much in favour of Ben’s welfare rather than the health and safety of the worker.
69The Department must meet a standard of reasonable practicability. The Court accepts that balance of judgment is a fine one, but which fell short in this case. All workers, including those who care for the State’s most vulnerable children, are entitled to a safe workplace. Residential care workers’ rights are not diminished by the obligation to provide best practice trauma informed care to their charges. These workers are performing a critical role in caring for some of the most needy and challenging members of our community. They are entitled to feel and be safe at work.
70Counsel for both accused submit that the departures are not so egregious as to merit a criminal conviction, and are at the lower end of the scale of culpability.
71I accept that the balance between providing for Ben’s immediate needs and best practice management for his long term wellbeing on the one hand, and staff physical safety on the other was a particularly nuanced and difficult exercise in this case.
72In light of the revised particulars to which each accused pleads guilty, I conclude that the gravity of the offending in this case falls toward the lower end of the range. I consider that VPCS’ offending is more serious than that of DHHS due to the second particular of the charge against it, and that will be reflected in the penalty I intend to impose.
Impacts of the offending
73The Department has submitted, and the Director accepted that “there is no evidence that the injuries to employees at…[the second Moe home] occurred as a result of discouragement to take refuge in the office”.[41] Accordingly, there are no “victims” of the Department’s offence, nor the first contravention in respect of VPCS. The “victim” of the second particular of the charge against VPCS has declined to provide a victim impact statement.
[41]Exhibit A5 at paragraph [37(a)]; see also Exhibit B1 at paragraph [24]
Sentencing Considerations & Matters in Mitigation
74Had this matter been commenced as it is currently charged, it would have been heard in the Magistrates’ Court.
75Both the DFFH and VPCS indicated their intention to plead guilty after I provided a sentence indication on 23 June 2022, following the amendment of the indictment of the relevant charges. This was a plea at the earliest opportunity. In so doing, they avoided the need for a trial, saved witnesses the stress of giving evidence at trial and avoided the use of public resources . I take the significant utilitarian value of these pleas of guilty into account, particularly in light of the adverse effects of the Covid 19 pandemic upon the justice system. In accordance with the principles in Worboyes’[42] case DFFH and VPCS are entitled to an actual and palpable amelioration of sentence.
[42] Ibid at paragraph [39]
76Neither the Department nor VPCS have prior convictions.
77VPCS relies upon philanthropic and corporate funding for their operations. I take into account the impact which the recording of a conviction may have upon their ability to attract future funding. The Director does not oppose the imposition of a non-conviction disposition in either case.
78The maximum penalty prescribed by the Act at the relevant time for offences to which the accused have pleaded guilty is 9000 penalty units or a fine of $1,365,030.00.[43]
[43]Sections 21, 23 of the Act
79I have regard generally to the current sentencing practices for offences of this type, and particularly where the risks to health and safety took the form of occupational violence. The parties agree that the following two cases are useful comparators.
80In The Crown in Right of the State of Victoria (Department of Justice and Community Safety) (4 November 2021, Magistrates’ Court of Victoria, Melbourne), the Department pleaded guilty to a single charge under sections 21(1) and 21(2)(e) of the Act arising from an incident at Malmsbury Youth Justice Centre (‘the Malmsbury case’) and was convicted and fined $80,000 plus costs.
81In the second case arising from an incident at Parkville Youth Justice Centre (‘the Parkville decision’), again concerning a single charge under the same provisions as the first, the Department pleaded guilty in the Magistrates’ Court and was convicted and fined $20,000.[44]
[44] The Crown in Right of the State of Victoria (Department of Justice and Community Safety) (4 November
2021, Magistrates’ Court of Victoria, Melbourne)
82The Director submits that the Department’s contravention in this case is more serious than the Parkville decision and is closer in seriousness to the Malmsbury case. The Director is not seeking a higher penalty by virtue of the fact that this matter is being determined in the County rather than the Magistrates’ Court. The Director makes similar submissions in respect of the offending of VPCS.
83Dr Neal submits that the Department’s culpability sits below both of the Youth Training Centre cases.
84Mr Stafford for VPCS submits and I accept that the Malmsbury case represents the upper level of a fine available in the present case, and notes that:
(a) In that case the offending Department had two significant priors;
(b) The breach in this case was more finely balanced than in that; and
(c) The Malmsbury case involved a clear breach of a rule previously set.
Parity
85DHHS had overall oversight and responsibility for the setting of appropriate standards and documentation concerning the care of Ben. Ben was a child in care of the Department. DHHS contracted out that care to VPCS. VPCS effectively adopted the standards set by DHHS. The Department must play the leading role and set the tone throughout the industry by ensuring that an appropriate balance is struck between meeting the needs of children in its’ care, and the safety of those workers engaged to provide that care. Accordingly, I consider that the Department’s culpability to be greater than that of VPCS in respect of the first particular against VPCS.
86The Department is not charged in respect of the second particular alleged against VPCS. The breach of this particular is more egregious than the first.
87Accounting for those differences I determine that each accused will receive the same penalty.
Conclusion
88These matters ultimately resolved to a plea of guilty at the earliest possible opportunity following the filing of an amended indictment. This is a most important consideration in the pandemic environment. Whilst general deterrence is a high priority consideration in cases of this type, the gravity of the offending is relatively low and neither accused have any prior convictions. Both have a satisfactory OH&S regime and have engaged in suitable post offence conduct to reduce the risk of similar offending in the future.
Sentence
89I impose a fine without conviction upon DFFH in the sum of $55,000.
90I impose a fine without conviction upon VPCS in the sum of $55,000.
Section 6AAA Declaration
91Pursuant to section 6AAA of the Sentencing Act 1991, I indicate that had DFFH pleaded not guilty and been found guilty after trial, I would have sentenced it to a fine with conviction in the sum of $110,000.
92Similarly, had VPCS pleaded not guilty and been found guilty after trial, I would have sentenced it to a fine with conviction in the sum of $110,000.
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