SafeWork NSW v Marist Youth Care Limited

[2024] NSWDC 74

District Court

New South Wales

Medium Neutral Citation:

SafeWork NSW v Marist Youth Care Limited [2024] NSWDC 74

Hearing dates:

13 and 27 February 2024; 1 March 2024

Date of orders:

11 March 2024

Decision date:

11 March 2024

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

1   Marist Youth Care Limited is convicted.

2   I impose a fine of $300,000.

3   The offender is to pay the prosecutor’s costs of the proceedings as agreed in the sum of $140,000.

4 I order pursuant to s 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.

Catchwords:

CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of serious injury – injury to workers

SENTENCING - objective seriousness - deterrence - aggravating factors - mitigating factors - appropriate penalty

SENTENCING PRINCIPLES - no record of previous convictions - good prospects of rehabilitation - remorse - plea of guilty

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999

Work Health and Safety Act 2011 (NSW)

Cases Cited:

Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37

GAS v The Queen (2004) 217 CLR 198

R v Bakewell NSWCCA unreported 27 June 1996).

R v Borkowski (2009) 195 A Crim R 1

R v Crowley [2004] NSWCCA 256

R v FV [2006] NSWCCA 237

R v H [2005] NSWCCA 282

R v Olbrich (1999) 199 CLR 270

R v Thomson & Houlton (2000) 49 NSWLR 383

R v Youkhana [2004] NSWCCA 412

Weininger v The Queen (2003) 212 CLR 629

Category:

Sentence

Parties:

SafeWork NSW (Prosecutor)
Marist Youth Care Limited (Defendant)

Representation:

Counsel:
B Docking (Prosecutor)
B Hodgkinson AM SC (Defendant)

Solicitors:
Department of Customer Service (Prosecutor)
HWL Ebsworth Lawyers (Defendant)

File Number(s):

2021/300045

Publication restriction:

None

Judgment

1. Marist Youth Care Limited (the offender) appears for sentence after pleading guilty to an offence under s 32 of the Work Health and Safety Act 2011 (NSW) (the Act), that it failed to comply with the health and safety duty it owed pursuant to s 19(1) of the Act and thereby exposed Samantha Sosa and NN [1] to a risk of serious injury or illness.

   1. I made an order for the non-publication of NN’s name on 13 February 2024 pursuant to s 8(1)(c) and (d) Courts Suppression and Non-publication Orders Act 2010.

2. The maximum penalty for the offence is a fine of $1,500,000.

Facts

Foreword

3. The parties presented an Agreed Statement of Facts. It was a 27-page closely spaced document comprising of 225 paragraphs. It contains a huge amount of factual information.

4. In addition, the parties also tendered by agreement, three volumes of documents, of which I was taken to selected pages. It was not always clear why it was necessary for me to have regard to those documents. Overall, the sentencing exercise was massively overcomplicated by the approach of the parties, resulting in the sentence hearing being conducted over three days. This is an approach that has been often criticised in the Court of Criminal Appeal because it runs the risk that the sentencing judge will take into account facts that aggravate the offence contrary to the De Simoni principle: R v H [2005] NSWCCA 282 at [58], R v FV [2006] NSWCCA 237 at [41], R v Crowley [2004] NSWCCA 256 at [46] and R v Bakewell NSWCCA (unreported 27 June 1996).

5. For example, an 84-page expert report compiled by a forensic psychologist, Dr Kim Dilati, at the request of the prosecution, was hotly contested. Dr Dilati was not required for cross-examination. Large swathes of her report, in my view, are overstated and irrelevant to the issues in the case. For example, a large part of the report develops the proposition that the offender should have been aware of the risk of work-related violence posed by a particular client, Liam. This was not relevant to the pleaded risk, which the offender accepted existed and for which it had provided relevant and specific training to address the pleaded risk. Another example was that Dr Dilati opined that the offender should have assessed the risk posed by Liam using specific actuarial risk assessment tools for youth sexual offenders. This was not a reasonably practicable step that the prosecutor alleged should have been taken and was therefore irrelevant. Further, by their terms the actuarial tools applied only to offenders, but Dr Dilati equated unproven allegations with convictions, without a proper basis for doing so. Finally, her references to Liam as a “sexual predator” were just inflammatory and unhelpful.

6. On the other hand, some limited paragraphs are useful in understanding the offender’s failures. For example, that in Dr Dilati’s experience it is standard practice in forensic settings to consider the gender of workers tasked with caring for patients with certain conditions.

7. It is unnecessary to decide every disputed fact on sentence: Weininger v The Queen (2003) 212 CLR 629 at [19]. Many of the matters raised in argument did not, of necessity, aggravate or mitigate the offence. I have placed substantial reliance on the extensive set of agreed facts: Weininger at [22]. I am not bound to accept any of the matters outside of the Agreed Statement of Facts: GAS v The Queen (2004) 217 CLR 198 at [27]-[32].

8. To the extent that I have made findings of fact adverse to the offender, I am satisfied of that fact beyond reasonable doubt. To the extent that I have made findings of fact favourable to the offender, I am satisfied of that fact on the balance of probabilities: R v Olbrich (1999) 199 CLR 270 at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ).

9. I have taken the entirety of the Agreed Statement of Facts into account in coming to an appropriate penalty. What follows is a brief summary of the facts to permit an understanding of the penalty imposed.

Background

10. The offender is a not for profit, non-government organisation (NGO) that operates as a charity. It operates a business or undertaking providing residential care for young persons under the care of the Minister.

11. In or about June 2018 the Department of Communities and Justice (DCJ) adopted the Intensive Therapeutic Care Model (ITC Model) of service for the provision of out-of-home care, following the publication of an independent review report on the prior model.

12. On 28 June 2018 the offender entered into a contract with DCJ to provide care services using the ITC Model to clients referred to it for support by DCJ.

13. Transition to the ITC Model required transformational change within the offender as an organisation. It required the retraining of its workers and the recruitment of new qualified workers. The timeframes for the offender to comply with its contractual obligations were unrealistic and the offender struggled from the outset to train and recruit staff and to find suitable houses for the programs that it had agreed to provide.

14. As part of the services provided to the DCJ by the offender, it operated 12 Intensive Therapeutic Care Homes (ITCHs) in New South Wales. An ITCH housed up to four young persons with high needs. The young persons were provided with daily intensive therapeutic support from qualified workers, including planned activities, casework support, transport, supervision and regular review. Placement in an ITCH was intended to be for a period of 13 weeks to two years.

15. Joan House was an ITCH operated by the offender from a rented house in Moorebank. The offender operated other residential homes in the Liverpool area and Joan House was approximately 45 minutes’ drive from the offender’s head office in Blacktown.

16. Samantha Sosa and NN were female direct care workers rostered to perform shifts at Joan House from time to time. Direct care workers were responsible for helping the residents with cooking, housework, administering medication, facilitating activities and transport. The offender employed full-time and casual direct care workers and also engaged direct care workers from an employment agency, as required. ITCH direct care workers were required to have relevant qualifications.

17. The direct care workers at Joan House reported to the House Manager, Blake Smith-Tatafu. Mr Smith-Tatafu reported to the Area Manager.

18. Glenn Fleming was employed by the offender as a Therapeutic Specialist. Mr Fleming was a qualified psychologist and was responsible for preparing assessments, therapeutic plans and intervention guidelines for the young persons and monitoring their wellbeing.

19. The offender maintained an after-hours response team (ART) at its head office in Blacktown. The ART was available 5pm to 8am on weekdays and 24 hours a day on weekends.

20. The offender maintained an electronic information management system known as “Penelope”. Workers recorded daily observations and incidents concerning the young persons in care. Penelope provided prompts for workers to report on incidents including, assaults to staff, property damage, sexualised behaviour and verbal abuse. Workers reported that there was little training provided on guidelines for the use of Penelope and it was confusing. In August 2019 another system known as “Safety Champion” was introduced as a pilot program at Joan House. It was intended to be used to make reports of incidents that affected the safety of workers.

21. Mr Smith-Tatafu, the Area Manager, Mr Fleming and case workers had access to the records in Penelope. Mr Smith-Tatafu was required to read the daily entries in Penelope and from them draft a Monthly Snapshot for review by the Area Manager. Direct care workers, Mr Fleming and the caseworkers were required to read the daily entries in Penelope and to discuss any concerns raised at Care Team meetings.

Liam

22. Liam (a pseudonym) was born in 2003. As a child he was subjected to physical abuse and neglect. From age four, he began to present with significant behavioural difficulties, including violent, destructive and impulsive behaviour.

23. The offender knew prior to being asked to place Liam in its ITCH program that Liam had been charged with a number of assaults particularly on females, placed in juvenile detention and that his care provider had placed in him in an Alternate Care Arrangement (ACA), in which he was provided one-on-one care in a serviced apartment. The offender knew that he had been classified as “high needs” scoring 5/6 on the Client Assessment Tool (CAT).

24. On or about 28 August 2018 the offender accepted the referral of Liam by DCJ, but there was a delay in finding an available and suitable house to place him. On 25 October 2018, 8 November 2018 and 26 November 2018 Mr Fleming visited Liam at St Saviours. During one of these visits, Liam threatened to bash Mr Fleming. Mr Fleming observed Liam was cared for by very big, powerful men and that he engaged in rough housing and play wrestling with those carers. Mr Fleming was told by one carer that Liam had assaulted him with a chair and by throwing an object at him.

25. On 23 November 2018 the offender raised internally the desirability of having a male-only care team, by reference to the types of clients that were being referred to it. The proposal had support from some management staff. On 27 November 2018, the Area Manager sent an email stating that she would prefer to maintain gender balance in staffing, “where possible”, because it may be necessary to move clients between the ITCHs and on that basis did not support the formation of a male-only care team.

Derek

26. Derek (a pseudonym) was born in 2004. Prior to being placed at Joan House the offender knew that Derek presented with significant behavioural difficulties, including poor anger management and mental health conditions including reactive attachment disorder, Oppositional Defiant Disorder (ODD) and emerging bipolar disorder. Derek had been criminally charged for graffiti, running on train tracks and property damage. He was also seen with others engaging in break and enter offences and had an Apprehended Violence Order (AVO) put in place due to an assault on a resident in one of his former placements.

27. On 19 June 2019, a matching report completed for Derek being placed at Joan House with Liam identified a “high risk” of sexualised behaviours and aggression towards others. It was determined to transition Derek through another ITCH in Newcastle to address these risks.

John

28. John (a pseudonym) was born in 2005. Prior to John’s placement at Joan House the offender knew that John experienced rapid mood changes and had prospective diagnoses of schizophrenia and bipolar disorder, neither of which had been confirmed. He had previously self-harmed by cutting himself and punching walls. John had a history of offending behaviour and had contact with the juvenile justice system. His previous offending included robbery, assault on police and breach of bail conditions.

Events occurring in the charge period

29. On 7 January 2019 Liam was placed at Joan House as the only resident.

30. No risk assessment was completed by the offender addressing the safety of the workers at Joan House, security, weapons or violence before Liam was moved to Joan House.

31. The House Manager, Mr Smith-Tatafu, was not told that there was a risk to female workers posed by Liam, by reference to sexualised behaviour or aggression.

32. On 7 January 2019 Mr Fleming created a Safety Plan for Liam and sent it to the staff at Joan House. The January Safety Plan did not make any express reference to Liam’s sexualised behaviour or the need to provide for the safety of female workers.

33. Liam’s placement was initially made on the basis of a two-on-one staffing ratio until he settled into the placement. From Monday to Friday, the House Manager was also present from 9am to 5pm, providing a three-to-one staffing ratio.

34. During January 2019, entries made by the workers in Penelope recorded Liam being verbally disruptive and using sexually aggressive language towards workers. On 23 January 2019 Liam struck and kicked Mr Fleming on his arrival to the house.

35. On 25 January 2019 a further Safety Plan was created together with a Behavioural Support Plan. Neither document contained adequate measures to address the risk of violence or sexualised violence towards female workers. Workers were instructed to follow the Safety Plan and to report concerning behaviours. On 25 January 2019, Mr Fleming created Joan House Rules about physical contact and property damage, stating that the police would be called if Liam would not respond to two or three warnings to cease such conduct.

36. On 31 January 2019 Liam pointed a knife towards the Area Manager and threatened to “gut her like a pig” in the presence of NN. The Area Manager feared for her safety and locked herself in the office. She did not fill out an incident report or call the police in response to this incident.

37. The entries in Penelope for February 2019 recorded further incidents of sexualised and aggressive behaviour by Liam towards workers. On 25 February 2019 the ITC Panel of the offender met and discussed Liam’s behaviour. The minutes of the meeting recorded ongoing issues with Liam trying to access the staff room and workers not wanting to interact with him because they were scared of him. The issues discussed by the ITC Panel were not raised with the House Manager.

38. On 18 February 2019 the offender was represented at a Complex Case Panel convened by DCJ relating to Liam. The report of the panel recorded that Liam escalated his behaviours towards casual workers and was unhappy with the constant changes of staff at Joan House.

39. On 4 March 2019 Mr Fleming created a Positive Behaviour Support Plan for Liam that included:

[Liam] may be violent or aggressive towards staff. [Liam] may be sexually inappropriate towards female staff.

40. Entries in Penelope for March and April 2019 recorded incidents of Liam’s sexualised and aggressive behaviour. These included reports of poking and pushing workers, severe defiance issues and adversarial behaviour targeting female workers. Liam was verbally aggressive towards the Area Manager when she attended the house on a few occasions and on one occasion the Area Manager asked staff to be with her to protect her from Liam.

41. On 15 April 2019 the offender decided to roster an additional “stay awake” staff member to be present during the night. Between January 2019 and April 2019, there had been about 33 occasions when a female worker was rostered on to perform the sleep over shift and was alone in the house with Liam.

42. On 22 April 2019 Ms Sosa was rostered to work the afternoon shift from 3pm, with another worker Carly Mercier, and the sleep over shift from 11pm to 7am. Another worker, Omololu Ogungbole, was rostered to work the stay awake shift from 10.45pm to 7.15am. Ms Mercier completed her rostered shift at 10pm, leaving Ms Sosa alone with Liam for 45 minutes to an hour before the arrival of Ms Ogungbole. During this time, Liam sat on Ms Sosa and held her twice before placing his hand inside her underwear and sexually touching her.

43. Ms Sosa took about one month’s leave after the sexual touching incident and on her return to work continued to undertake casual shifts at Joan House. Liam continued to make sexually inappropriate comments towards her and other female workers.

44. On 5 May 2019 Mr Fleming noted in an email to the House Manager, the Area Manager and others that Liam’s behaviour towards female workers continued to escalate despite all efforts to address his behaviour with him. Mr Fleming described the situation as “really concerning” and “hugely inappropriate”. Mr Smith-Tatafu directed workers to email him regarding incidents and to copy in the Area Manager so that management was aware of what was occurring.

45. At the times when the Area Manager was asked to attend Joan House in this period, she declined to attend.

46. On 18 July 2019, Derek was placed at Joan House. The documents prepared to assess the suitability of his placement were focussed on the risks to Derek and Liam and there was no risk assessment conducted relating to the risk posed to the workers by Derek, or Derek and Liam residing in the house together.

47. On 5 August 2019 NN reported in an incident report that Liam had threatened her with sexual and physical violence.

48. On 9 August 2019 Mr Fleming created an Interim BSP for Derek.

49. On 20 August 2019 a revised BSP was put in place for Liam. The plan remained unchanged from the 4 March 2019 BSP with regard to his sexualised behaviour.

50. On 22 August 2019 John was placed at Joan House. The documents prepared to assess the suitability of his placement with Liam and Derek, recorded the potential for the risk of sexualised behaviour as “high”. The House Manager and the staff of Joan House were not consulted about the placement of John at Joan House prior to it occurring.

51. On 23 August 2019 NN was rostered to work with an agency worker, Paul. At about 9.30pm, Liam locked Paul out of the house for about 45 minutes. Derek and John came to support Liam. When they opened the door to let Paul in, they rushed at him. Paul was pushed by each of the young persons and John took off Paul’s shirt. When the police arrived, the young persons fled.

52. On 24 August 2019 NN was again rostered to work with Paul. On that morning, another worker, Ranbir Singh, had requested ART to provide another worker because there was no-one identified on the roster to work with NN in the afternoon and the young persons had been difficult to control since Derek and John moved in. The House Manager and NN also made calls to ART requesting support due to the behaviour of the young persons and NN being rostered to work for 1.5 hours alone at the house.

53. At about 10.30am Derek and John approached NN in the kitchen and stood close to her, making it difficult for her to move around and do her work. She asked them on several occasions to move away from her. Derek made comments about NN’s physique and make-up, including that he would like to see her without make-up. John moved uncomfortably close to NN and attempted to touch her face and upper body. NN went to the staff room and locked the door. At 11.00am she telephoned ART and asked if another worker was coming to assist her. She was advised that there was no-one to redeploy from another house and that another worker, James, was due to commence his shift at 12.30pm. NN told ART that she did not feel safe. She was advised that if the young persons threatened her, to remain in the staff room and to call the police.

40. Derek came to the staff room door and asked for his pocket money. NN refused to give him pocket money and told him that he could attend an activity when the other worker arrived. Derek returned a short time later demanding his pocket money and threatening to get into the office to get it himself. NN ignored Derek and he began banging on the screen door and swearing. Liam and John also came to the door.

41. NN called the ART again for assistance. She was again told that another worker was due to start at 12.30pm and to call the police if she felt threatened. NN telephoned the House Manager to tell him what was going on and to ask him to call ART. At about 12 noon, Paul arrived at the house.

42. At about 6.00pm, NN was getting ready to leave at the end of her shift. Liam stood by the door demanding that she return his PlayStation or let him into the office to retrieve it. When she refused, Liam began to abuse and threaten her. He then barricaded the door and told her that she was not leaving. She then closed the wooden door to disengage from the situation and sat with Paul in the office.

43. NN telephoned ART informing them that she had finished her shift and asking if they had found a replacement worker to cover for a worker who had to leave early to attend to a family emergency, because Paul would be alone at the house until the worker rostered on to the stay-awake shift arrived. ART informed NN that if she did not hear back in 10 minutes that the ART worker would attend the house until the worker rostered onto the stay-awake shift arrived.

44. About 30 minutes later, NN messaged ART and Mr Smith-Tatafu informing them that she was barricaded inside the office by Liam and that the young persons were screaming at her and Paul, racially abusing them and threatening to kill them.

45. After a short while, when it was quiet, NN left the office to go to her car with Paul. As she approached her car, Derek ran and stood in front of the driver’s door to prevent her from getting in the car. NN asked Derek to move several times. He did not and moved closer to her. He told her that she would have to suck his penis because she was already close to it. NN stepped to the side, opened the rear door and placed her bags on the back seat of the car. She got into the driver’s seat and tried to close the door. Derek was pulling the door open. He entered the car and squeezed on top of NN, reached for her keys and bag and touched her inappropriately.

46. Paul asked the young persons to leave several times. Derek ran at Paul, giving NN the chance to close the door and start the engine. Derek then stood in front of the car, tampered with the number plate and motioned with his hand that NN’s throat would be slit. At the same time, John was trying to force open the boot of the car, before climbing on the boot of the car and then standing on the roof of the car. Liam was trying to force down the driver’s side window of the car.

47. NN called ART to see how far the other worker was from arriving at the house. Derek was seated on the bonnet of the car and John on the boot of the car. Once the ART worker arrived, NN drove off.

48. At 7.20pm NN texted ART that she would not be at work the following day due to what had occurred.

49. NN completed incident report forms and lodged a claim for workers’ compensation.

50. On 7 September 2019 when Ms Sosa arrived at the house, Liam called her a “fucking whore”. He picked her up and spun her around. When Ms Sosa demanded to be put down, Liam laughed and said, “You are wearing grey undies”. Ms Sosa disengaged and went to the office. Liam spoke to Ms Sosa through the door making a series of inappropriate, demeaning and explicit sexual comments towards her.

51. On 27 September 2019 Ms Sosa disclosed what had occurred in the sexual touching incident to a supervisor. She was advised to report the incident to Human Resources and encouraged her to go to the police. She completed an incident report on 1 October 2019 and reported the matter to the police on the same day.

52. On 17 October 2019 Liam was arrested and charged with two offences arising from the sexual touching incident. On 2 June 2020, the offence was found to be proven at Campbelltown Children’s Court and Liam was sentenced for it.

53. The sexual touching incident was reported to SafeWork NSW on 24 October 2019.

54. From the commencement of Liam’s placement at Joan House, female workers were called names including “slut”, “bitch” and “whore”. Liam made threats of rape and physical violence and made sexually inappropriate comments to them. He also made racist remarks towards workers. He would engage in inappropriate touching and react violently when asked to stop. He made comments about Ms Sosa’s buttocks and tried to touch her buttocks. He would often grab female workers, including NN and Ms Sosa, on the arm. On one occasion he barged into the office and threw Ms Sosa onto the bed and jumped on top of her. He also sat on Ms Sosa’s lap on occasions and inappropriately tickled her close to her breast area.

55. Ms Sosa was uncomfortable about the comments made by Liam towards herself and NN and spent less time interacting with him. She was fearful of being alone with Liam. Ms Sosa told Mr Smith-Tatafu that she was stressed by Liam and did not know how to handle him anymore. She felt mentally drained by Liam and asked to be taken off the Joan House roster.

56. NN and Ms Sosa also raised at team meetings what was being said to them by Liam and that it was making them uncomfortable. NN and Ms Sosa did not report all of Liam’s negative behaviours on Penelope because they were so frequent.

57. NN and Ms Sosa believed that Liam’s sexualised behaviours escalated with the placement of Derek and John.

58. The young persons would stand by the door of the office and take turns racially abusing NN. On one occasion they came to the door wearing balaclavas and attempted to force the door open. On several occasions, Derek rubbed his topless body against the screen door while making sexual gestures towards NN. NN felt unsafe in the presence of Liam and Derek.

59. Female workers raised their concerns with Mr Smith-Tatafu. Mr Smith-Tatafu told the female workers that he would raise their concerns with the Area Manager, that he was seeking extra help from management but not getting it. Workers observed that he was frustrated by the situation.

60. Several meetings with management were held where it was said that the female workers did not feel safe at the house and it was suggested that there be a male worker rostered on to work with female workers, if possible. The Area Manager was present at most of these meetings.

61. The offender accepts that in the relevant period it was reasonably practicable to roster male workers to work at Joan House.

Events after 1 October 2019

76. After receiving the incident report relating to the sexual touching of Ms Sosa, the offender took steps to remove a young person from Joan House, made sleep over shifts permanent and removed all female workers from the roster.

77. On 15 October 2019 the offender conducted a risk assessment for the workers and the residents of Joan House, that identified Liam posed a very high risk of harm to female workers.

Injuries of Ms Sosa and NN

78. Ms Sosa was diagnosed with anxiety and posttraumatic stress disorder (PTSD). She suffered panic attacks relating to the sexual touching incident. She was deemed unfit for any work in October and November 2019.

79. NN was diagnosed with PTSD, generalised anxiety disorder and major depressive disorder. She made a claim for workers compensation.

Offender’s Case on Sentence

80. The offender read affidavits of Cassandra Gray affirmed 5 February 2024 and 13 February 2024. Ms Gray was not required for cross-examination. The first affidavit exhibited a large volume of documents, which I will refer to if necessary. I have taken into account the entirety of Ms Gray’s evidence in coming to an appropriate penalty. What follows is a precis of the evidence relied on by the offender.

81. Ms Gray is the Senior Manager for Therapeutic Services with the offender. Ms Gray is responsible for the development and implementation of the therapeutic framework for the organisation and forms part of the Executive Leadership Team. She commenced work for the offender in November 2021 and started in her current position in April 2023. Ms Gray is a registered psychologist.

82. The offender is a not-for-profit charity that provides residential care and social programs to vulnerable children and young persons in New South Wales and the Australian Capital Territory. In 2019 the offender had over 30 properties operating in New South Wales and employed 354 workers, including 234 full time employees. In 2024 the offender has more than 50 homes operating in Sydney, the Hunter, Western NSW and the ACT and employs more than 500 workers to provide support to approximately 1300 children and young people annually.

83. The offender is currently funded through the receipt of State and Federal government grants which are provided for and tied to the delivery of services to the community, particularly children and young people. In 2023 more than 98% of revenue received by the offender was provided through State and Federal grants.

84. In June 2018 the offender entered into an agreement with DCJ to provide foster care and residential care services to children and young people in the care of the Minister with a view to achieving permanent living arrangements (the PL Agreement). The PL Agreement limited the offender’s ability to refuse referrals of young persons for placement. In short, where the offender had actual vacancies it was expected to accept referrals of young persons from the Department except in specified circumstances. The offender had to demonstrate that payments made to it under the PL Agreement were used by it in providing services to young persons in the relevant period. Any payments not used would be deducted from the next scheduled payment. Services provided pursuant to the PL Agreement were required to be delivered in accordance with the “Ten Essential Elements”. The offender was required to provide service allowing for the participation of young people and in accordance with their rights.

85. The Ten Essential Elements required the offender to do the following:

1. provide a therapeutic specialist responsible for facilitating and co-ordinating therapeutic case plans;

2. engage the young person in formulation and implementation of their case plan including involving the young person in the decision making process about house routines and structures, menus, outings, social events, feedback and complaints;

3. provide an appropriate client mix;

4. hold care team meetings;

5. provide a safe physical environment, nurturing a home-like environment and to provide each young person with their own bedroom;

6. incorporate a reflective practice;

7. formulate exit planning and post-exit support;

8. provide qualified training assistant staff;

9. demonstrate organisational commitment to a therapeutic philosophy of care; and

10. provide adequate governance and reporting mechanisms.

ITCH

86. The offender was contractually obliged to provide certain staffing levels and to “take a risk management approach to fostering”.

87. On the commencement of the PL Agreement representatives from the offender and DCJ met on a monthly basis to discuss contract implementation and logistics. DCJ’s expectations were set out in a number of documents provided to the offender.

88. The offender conducted its operations in accordance with its health and safety operations manual which had been compiled with regard to the relevant Australian Standard and Equality Management System Guidelines.

89. Young persons referred to the ITCH program have experienced significant and complex trauma during their upbringing and have a history of multiple placements. They are at risk of absconding from placements and vulnerable to exploitation by others. They have often had interactions with law enforcement and the court system. The CAT records behavioural health and development issues identified as relevant to a young person’s recommended level of care.

90. Joan House commenced operation in 2018 and was comprised of core staff that transferred from existing homes in the Blacktown and South West Sydney regions, including NN and Ms Sosa.

91. The role of the direct care worker was to meaningfully engage with the young person through involvement in their activities and to provide primary care and support, to assist in programming to promote their growth and development and to provide case work support and role modelling for the residents. Direct care workers were required to manage challenging behaviours of the residents.

92. House team meetings were conducted to provide workers with the opportunity to discuss the running of the house, the behaviour of the residents and any matter relevant to the task of the direct care workers.

93. Workers were provided induction training over two weeks covering a number of topics including workplace violence de-escalation, sexualised behaviours response, positive behaviour and support and more general work health and safety training. Workers were also required to be assessed as competent on a Youth Worker Induction Checklist.

94. Following his placement at Joan House, Liam was referred to the ELVER Program for specialist medical treatment. Home visits were attempted by the ELVER team, but Liam refused to engage with them or the program, causing the referral to lapse. On or about 15 April 2019 the offender introduced additional risk management strategies in response to Liam’s behaviour including the introduction of the stay awake shift, revising his BSP and implementing regular room inspections and approving restrictive practices.

95. Ms Sosa did not report the sexual touching incident of 22 April 2019 until 27 September 2019. The offender took steps from 2 October 2019 to address the sexual touching incident. Ms Gray deposed that the offender took various steps to support Ms Sosa following her report of the sexual touching incident.

96. Ms Gray deposed that the offender provided support to NN following the 24 August 2019 incident.

97. The offender co-operated with the SafeWork investigation by hiring out conference rooms for the purposes of conducting face-to-face interviews with the relevant workers.

98. In response to the incidents in the charge period, the offender required that a male worker be present with any female worker interacting with Liam and reviewed and updated his BSP instructing staff to take threats of physical violence, property damage or racial vilification very seriously and to immediately notify the police.

99. The offender undertook a wide-ranging review of its procedures and updated a large number of them.

100. Ms Gray deposed that the financial results for the offender on an annual basis are as follows:

1. FY2018/2019 – a loss of $5,278,441;

2. FY2019/2020 – a loss of $3,479,392;

3. FY2020-2021 – a loss of $295,005;

4. FY2021-2022 – a surplus of $1,100,817; and

5. FY2022-2023 – a surplus of $1,128,895.

101. The offender has invested more than $10 million in capital works for the purpose of providing services to young people under the PL Agreement. The capital investment was made to purchase property and modify houses to fit in with the ITCH requirements including to provide for the Ten Essential Elements of therapeutic care.

102. Operating surpluses are adjusted from grant payments in the following quarter.

103. Ms Gray has been authorised by the offender to inform the Court that the organisation deeply regrets that its workers, in particular NN and Ms Sosa, were subjected to risks to their health and safety in the performance of their duties. The offender accepts responsibility for its failings set out in the Amended Summons and apologises to NN and Ms Sosa, the Court and the other members of its staff.

Consideration

104. I have had regard to the objects of the Act set out in s 3, the purposes of sentencing set out in s 3A Crimes (Sentencing Procedure) Act 1999 and the matters in 21A Crimes (Sentencing Procedure) Act 1999.

Objective seriousness

105. The pleaded risk was the risk of Ms Sosa and NN suffering serious injury or illness arising from work-related violence perpetrated by a resident of Joan House. The offender was aware that each of the young persons was a potential source of work-related violence for the workers at Joan House. The offender should have known from his history and his behaviour at Joan House that Liam posed a risk of assault and inappropriate sexual behaviour towards female workers. The offender also knew that Derek and John had a history of assault and the offender itself had concluded that their introduction to Joan House was likely to present a high risk of inappropriate sexual behaviour and aggression by the residents towards female workers.

106. The existence of the risk was confirmed for the offender by the events at Joan House after Liam moved in. Those incidents were recorded as required by the relevant procedures, but there were multiple failures at management levels to respond to those incidents. In particular, the Area Manager’s response was seriously inadequate.

107. The likelihood of the risk occurring was high. Liam’s behaviour was persistent throughout the charge period and proved difficult to change. Consistent with the offender’s own assessment, the introduction of Derek and John to the house increased the likelihood of the risk occurring.

108. The potential consequences of the risk were serious injury or illness to two female workers. The risk did not include a risk of death.

109. The risk of work-related violence to the workers could be minimised but not eliminated. The young persons were difficult to control. The offender had very few means at its disposal to try to change the behaviour of the young persons. The offender was required to provide a “home-like” environment for the young persons. It could not impose restrictions on their liberty and only had limited means of depriving them of privileges. Calling the police in response to bad behaviour was likely to undermine trust between the young persons and the direct care workers who involved the police.

110. The risk of sexualised violence towards female workers could have been eliminated by engaging only male direct care workers to care for Liam, but it may not have been a step that was optimal for his care. The offender accepted by its plea that this was a reasonably practical step that would have eliminated the risk.

111. By its plea of guilty, the offender accepted that it should have conducted risk assessments relating to the risk posed to Ms Sosa and NN at three different points in time, developed and implemented an adequate BSP for Liam, engaged two male direct care workers to care for Liam at Joan House and provided an adequate ART.

112. The undertaking of the necessary risk assessments was an available step that would have caused little inconvenience to the offender. The offender was required to, and did, undertake risk assessments relating to the welfare of the young persons and the extension of that analysis to consider the risk to the workers was not burdensome. By conducting the necessary risk assessments, focussed on the risks to the health and safety of its workers, the offender would have identified the risk to female workers and that it could have been eliminated by removing female direct care workers from Joan House. Similarly, adapting the BSP to take account of the risk to workers would not have been inconvenient.

113. The decision to engage male-only direct care workers at Joan House was a reasonably practical step, but not necessarily a simple and straight forward one. The offender needed to transfer workers between houses when it was necessary to do so by reason of labour shortages. Further, the offender needed to consider what the impact would be on Liam’s development, including by considering how he would be exposed to females in a healthy way.

105. The offender had in place a substantial quantity of appropriate procedures in place and it had trained the workers on them.

106. The situation was complicated by Ms Sosa’s delay in reporting the sexual touching incident, for which I intend absolutely no criticism of her. Liam’s serious misconduct in April 2019 went unchecked and when the offender became aware it acted immediately and appropriately. It is likely that if the sexual touching incident was reported that the charge period would have been shorter and the aggravating circumstances reduced.

107. NN has developed PTSD as a result of her experiences at Joan House in the charge period. The events of 24 August 2019 would have been very frightening and stressful. Her mental condition has contributed to the breakdown of her relationship, created financial strain, had a pervasive impact on her daily activities and caused her to question her vocational choices.

108. Ms Sosa suffered a significant violation of her body in the sexual touching incident and has developed PTSD. She has experienced difficulty in finding alternative work as a result of her mental condition and feels that she cannot return to night shifts or one-on-one support shifts. This has also caused her some financial loss. The impacts of her trauma have put her life on hold for a period, including starting a family.

109. I have taken into account the maximum penalty for the offence.

Deterrence

119. The penalty imposed in relation to the offences must provide for general deterrence. PCBUs must take the obligations imposed by the Act very seriously. The community is entitled to expect that both small and large businesses will comply with safety requirements. General deterrence is a significant factor when safety obligations are breached: Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37 at [180].

120. There is some need for specific deterrence in this case because the offender still operates a business that potentially exposes workers to work-related violence. Conversely, the offender took immediate steps to make changes at Joan House when Ms Sosa reported the sexual touching incident. Subsequently, it conducted a comprehensive review of its safety systems and improved them. The offender operates a large business in a difficult industry. It has demonstrated that it has due regard for the law and its obligations, despite its failings in this case. A large fine is not required to achieve specific deterrence.

Aggravating factors

121. The injury, harm and loss caused by the s 32 offences was substantial: s 21A(2)(g) Crimes (Sentencing Procedure) Act 1999. In order for the aggravating factor to be established, I must be satisfied beyond reasonable doubt that the harm was greater or more deleterious than may ordinarily be expected for the offence in question: R v Youkhana [2004] NSWCCA 412 at [26]. The offence does not require an injury to be sustained but only the creation of a risk. In this case, the psychological injury sustained by Ms Sosa and NN are sufficient to establish the aggravating factor.

Mitigating factors

122. The offender does not have any record of previous convictions: s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999 (NSW). The offender has been operating since 1994.

123. The offender has good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. The offender has demonstrated by reference to the steps that it has taken to address the failures involved in this case, that it has good prospects of rehabilitation.

124. The offender has demonstrated remorse: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. Ms Gray, on behalf of the offender, has accepted responsibility for its failings and breach of duty and expressed remorse on behalf of the CEO. I am satisfied that the offender is genuinely contrite.

125. The offender entered a plea of guilty: s 21A(3)(k) and s 22 Crimes (Sentencing Procedure) Act 1999. It is entitled to a discount on penalty that reflects the utilitarian value of that plea: R v Thomson & Houlton (2000) 49 NSWLR 383 and R v Borkowski (2009) 195 A Crim R 1 at [32]. The plea also indicates remorse: Borkowski at [32]. The appropriate discount is 25%.

126. The offender is a charitable not-for-profit NGO that provides an important service to the community. The government funding provided to it is linked to the provision of the services it provides. Any funds not expended as intended in a particular period, are deducted from future payments.

Penalty

127. Marist Youth Care Limited is convicted.

128. I have taken into account the Victim Impacts Statements of NN and Ms Sosa.

129. The appropriate fine is one of $400,000 that will be reduced by 25% to give effect to the discount for the plea of guilty.

130. I impose a fine of $300,000.

131. The offender is to pay the prosecutor’s costs of the proceedings as agreed in the sum of $140,000.

132. I order pursuant to s 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.

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Endnote

Decision last updated: 18 March 2024