SafeWork NSW v Snap Programs Limited and State of New South Wales (Department of Communities and Justice)

[2021] NSWDC 259

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

SafeWork NSW v SNAP Programs Limited and State of New South Wales (Department of Communities and Justice) [2021] NSWDC 259

Hearing dates:

11 June 2021

Date of orders:

18 June 2021

Decision date:

18 June 2021

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

Penalty – SNAP

1   SNAP Programs Limited is convicted.

2   I have taken into account the principle of totality. The two offences arise from the same incident. The s 19(1) offence is the more serious because there were more people exposed to a risk of death or serious injury. For transparency in the sentencing exercise, I will nominate the appropriate fine for each offence but will reduce the fine for the s 19(2) offence to reflect the just and appropriate measure of the total criminality involved.

3   The total fines payable for the two offences is $90,000.

4   SNAP Programs Ltd is to pay the prosecutor’s costs of the proceedings agreed at $75,000.

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

Penalty – State of New South Wales

6   The Department of Communities and Justice is convicted.

7   I impose a fine of $150,000.

8   The Department of Communities and Justice is to pay the prosecutor’s costs of the proceedings agreed at $70,000.

9 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 death or serious injury – death of worker – death of child in care

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 - assistance to law enforcement authorities

Legislation Cited:

Children and Young Person (Care and Protection) Act 1988

Children and Young Persons (Care and Protection) Regulation 2012

Crimes (Sentencing Procedure) Act 1999

Fines Act 1996

Work Health and Safety Act 2011

Cases Cited:

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

R v Borkowski (2009) 195 A Crim R 1

R v Thomson & Houlton (2000) 49 NSWLR 383

R v Youkhana [2004] NSWCCA 412

Category:

Sentence

Parties:

SafeWork NSW (Prosecutor)
SNAP Programs Limited (Defendant)
State of New South Wales (Department of Communities and Justice) (Defendant)

Representation:

Counsel: D Jordan (Prosecutor)
C Magee (SNAP)
Y Shariff SC with M Kalyk (DoCJ)

Solicitors: Legal, Department of Customer Service (Prosecutor)
Lander & Rogers (SNAP Programs)
Crown Solicitor for NSW (DoCJ)

File Number(s):

2019/345748
2019/345729
2019/345742

Publication restriction:

None

Judgment

1. SNAP Programs Limited (SNAP) appears for sentence after it pleaded guilty to two offences pursuant to s 32 Work Health and Safety Act 2011 (the Act) in that it failed to comply with the health and safety duty it owed pursuant to:

1. s 19(1) of the Act and thereby exposed Rachel Martin, Brooke Houlison and Karin Ford to a risk of death or serious injury; and

2. s 19(2) of the Act and thereby exposed Riley Shortland to a risk of death or serious injury.

2. The State of New South Wales (Department of Communities and Justice) formerly known as Department of Family and Community Services), (FACS), appears for sentence after it pleaded guilty to an offence pursuant to s 32 of the Act in that it failed to comply with the health and safety duty it owed pursuant to s 19(2) of the Act and thereby exposed Rachel Martin, Brooke Houlison, Karin Ford and Riley Shortland to a risk of death or serious injury.

3. The maximum penalty for each offence is a fine of $1.5 million.

Facts

4. The parties tendered an Agreed Statement of Facts for each defendant that can be summarised as follows. I will highlight differences in the agreed facts if it is necessary to do so.

Background – FACS

5. FACS was a NSW government entity working to improve outcomes for disadvantaged and marginalised groups. At all material times, its business or undertaking included:

1. The supervision of the placement of children pursuant to section 141 of the Children and Young Persons (Care and Protection) Act 1998;

2. Arrangement of special respite care as a form of support for a child and his or her carer; and

3. Authorisation of, and payment for, special out-of-home care placement and respite care placement pursuant to clauses 32 and 33 of the Children and Young Persons (Care and Protection) Regulation 2012.

6. At all material times, the Child and Family District Unit (CFDU) was a unit within FACS and its functions included:

1. Provision of support and assistance to funded service providers (FSPs) who provided out-of-home care services;

2. Coordination of placements of children that are referred from Community Services Centres (CSCs) and (FSPs); and

3. Provision of support and training to generalist authorised carers.

7. Wendy Wilson had been employed by FACS as its Manager of Client Services, Central Coast CFDU, since 2010.

8. Kathleen Davis had been employed as FACS’s Manager for casework Central Coast CFDU since July 2017. Her responsibilities included overseeing a team of caseworkers that support FSPs.

9. Ann Cochrane had been employed as FACS’s Senior Aboriginal Case Worker at central Coast CFDU since September 2017. Her responsibilities included looking after FSPs.

10. Amy Parker began employment in October 2017 as FACS’s Caseworker Placements CFDU. Her responsibilities included finding placement for children coming into the care of FACS with FSPs. She was supervised by Ms Davis.

Background – SNAP

11. SNAP conducted a business or undertaking which involved supporting and caring for children in out-of-home care and children and adults with disabilities including providing respite care.

12. SNAP began operating on 1 February 2012. SNAP was accredited by the NSW Children’s Guardian to provide voluntary out-of-home care on 2 April 2012, however SNAP did not apply for accreditation to provide statutory out-of-care services to children in NSW. Accordingly, SNAP was classified as a “non-designated agency”.

13. On 29 November 2013, the Minister for FACS, for and on behalf of the State of New South Wales, acting through FACS entered into a contract with SNAP to provided support services, including supervised contact, supervised transport, youth worker support and mentoring, behavioural support and management, kinship/relative carer assessment, disability care, therapeutic camps and respite care.

14. Children were only eligible for a placement with SNAP if they met the criteria outlined in clauses 32 and 33 of the Children and Young Persons (Care and Protection) Regulation 2012. In accordance with FACS’s policy and clauses 32 and 33, placements with SNAP by FACS must have been pre-approved by the Deputy Secretary of FACS.

15. Karin Ford and William Hays were the directors of SNAP. Ms Ford also held the position of Operations Manager since 1 July 2012 and had been a director since SNAP’s inception on 1 February 2012. Mr Hays was the CEO of SNAP.

16. Brook Houlison commenced employment with SNAP in February 2017 as a casual Support Worker. Her responsibilities included providing care for clients with mental health issues and disabilities.

17. Rachel Martin commenced employment at SNAP in February 2015 as a casual Support Worker. She had completed the theoretical components of a Certificate IV in Community Services and approached SNAP to complete her work placement hours. She was eighteen weeks pregnant at the date of the incident.

Timeline of Riley Shortland’s Care

18. Riley Shortland (Riley) was born on 27 December 2008 to Amanda Taylor and Mark Shortland.

19. Riley was diagnosed with Autism Spectrum Disorder and global development delay in 2012. He had limited speech and communication skills.

20. In 2013, Ms Taylor signed a temporary care arrangement with FACS. From July 2013, Riley lived in a residential care placement with SNAP for approximately 15 months.

21. In April 2014, the Children’s Court allocated parental responsibility of Riley to the Minister of FACS until he turned 18 years old.

22. From the end of July 2014, Riley began the transition to move in with Fiona Martin, a foster carer registered with House With No Steps (HWNS) and her two sons who also had autism.

23. On 4 October 2014, Riley transitioned into Fiona Martin’s full-time foster care. FACS transferred responsibility for case management of Riley to HWNS but FACS still held Riley’s file and information up to this point in time.

24. While living with Fiona Martin, Riley began receiving support through the National Disability Insurance Scheme (NDIS). This included support for health and daily living, equipment, transport to school, some weekend respite and payment for essential products.

25. On 20 October 2014, Riley underwent an assessment with consultant paediatrician Damon Shorter. Dr Shorter confirmed that Riley’s presentation was consistent with his previous diagnosis of Autism Spectrum Disorder and global development delay. Dr Shorter rated Riley’s symptoms as level 3 indicating that he needed very significant support. SNAP was not updated on Riley’s symptoms and needs as he was no longer in their care.

26. On 28 June 2016, HWNS updated Riley’s Behavioural Support Plan (BSP). HWNS staff noted that Riley had targeted behaviour of “getting out of his car seat whilst travelling in the vehicle. Occurs when NOT in Houdini Strap or 5 point harness. Car seat with Houdini Strap to be used on all vehicles” and that:

“Riley Shortland’s developmental delay indicates that he does not understand social/societal/safety rules. This is clear when he attempts to get out of his car seat and/or a moving vehicle.

Houdini stop strap to be used at all times when Riley Shortland is travelling in a vehicle … to be used for all vehicle travel, regardless of the length of the trip.”

27. There was a further document titled “There are just a few things you should know about me” attached to the 2016 BSP. The document contained the following recommendations for Riley when travelling in a vehicle and stated:

“Please be sure to follow the instructions for securing me into my car seat.

I always have a carer seated next to me when I travel as they are lonely and need me to entertain them during the journey.

If I manage to escape you will need to be in a safe location before attempting to strap me back into my car seat.”

28. In July 2017, HWNS informed FACS that it was closing its foster care program and needed to return case management of Riley to FACS. Riley remained in full-time care with Fiona Martin.

29. FACS Central Coast CFDU took over the case management of Riley in a supervisory care role pursuant to section 141 of the Children and Young Person’s (Care and Protection) Act 1998. This was to continue until Allambi Care (Allambi), an FSP identified as a suitable agency, could take over Riley’s case management.

30. On 29 September 2017, Kim Housden, Riley’s HWNS case manager met with Ms Wilson, FACS Manager of Client Services, to complete a case management transfer for Riley. At this meeting:

1. Ms Housden provided Ms Wilson with a copy of Riley’s updated file, which included the 2016 BSP and a vehicle plan dated 28 June 2016; and

2. Ms Housden informed Ms Davis and Ms Cochrane that HWNS always needed two carers to support Riley for respite and transport.

31. Ms Wilson recalled that she was given a paper copy and a USB of Riley’s file. She did not review the file and alleges that she handed the paper file and USB to Ms Davis and believed that Ms Davis had given the file to Ms Cochrane.

32. Ms Davis denied that Riley’s file was given to her and alleges that it remained in Ms Wilson’s office. Ms Davis did not read the file however she was instructed by Ms Wilson to obtain Riley’s NDIS Plan from the file and send the NDIS Plan to Allambi.

33. Ms Cochrane alleges that she was not made aware of Riley’s file or the USB until after the incident.

34. As Riley’s case management was being managed by FACS Central Coast CFDU until the transfer to Allambi, Ms Wilson nominated Ms Cochrane to be the FACS contact person for Fiona Martin.

35. On 23 October 2017, Ms Cochrane emailed Ms Wilson in relation to her first conversation with Fiona Martin. She stated that Fiona Martin had been struggling, having no respite care for around six weeks in comparison to getting regular respite of a full weekend every month while she was with HWNS. Fiona Martin informed Ms Cochrane that no respite care had been arranged since the transfer from HWNS. Fiona Martin also raised concerns that Riley was getting “too big for his car booster seat” and she urgently needed help to buy a body harness as he was getting bruises from his booster seat.

36. In response to Fiona Martin’s request for respite care placement, Ms Cochrane organised for Riley to attend Camp Breakaway from 29 to 31 October 2017. Ms Cochrane relied on information provided by Fiona Martin to fill out Riley’s application. In the submission to Camp Breakaway, Ms Cochrane noted that:

“Riley has attended Camp Breakaway previously. Riley requires two workers to work with [him] at all times around the clock due to his high needs.”

37. The cost of Riley’s respite stay at Camp Breakaway was $6,296.72.

38. On 23 October 2017, Ms Wilson asked Ms Davis if she had located the NDIS Plan for Riley and whether they were able to purchase the harness required based on the funds available.

39. On 24 October 2017, Ms Davis replied to Ms Wilson and asked either Ms Wilson or Ms Cochrane to speak to Fiona Martin about what harness was needed.

SNAP Weekend Respite Placement

40. FACS used an electronic case management system called “Key Information and Director System” (KIDS). Riley’s KIDS profile had not been updated with the most recent information that was contained in the HWNS file, including the 2016 BSP and vehicle plan.

41. KIDS only contained Riley’s 2013 Client Information Form, 2014 Child Assessment Tool and 2014 BSP. The 2013/2014 documents did not have information in relation to Riley’s current transportation needs and targeted behaviour of trying to remove himself from a moving vehicle.

42. On 24 October 2017, Ms Parker, a new FACS employee, was instructed by Ms Davis to contact SNAP to determine if they had any available weekend respite care placements for Riley.

43. Ms Parker had not placed a child for respite care placement before. She was not given any up-to-date information on Riley and she could not find the paper copy of his file.

44. Ms Parker contacted SNAP. Mr Hays replied on 25 October 2017 and confirmed that SNAP was able to provide respite care placement for Riley between 3 to 5 November 2017 at a cost of $2,995 plus GST. The fee would cover transport, activities, meals and support. Mr Hays sent Ms Parker a SNAP referral form to fill out with Riley’s information.

45. Ms Parker relied on information available on KIDS to fill out FACS internal referral form and SNAP’s referral form for Riley. Mr Hays stated to Ms Parker that she did not need to send Riley’s 2013/2014 documents as Riley had been in residential care with SNAP between that time and SNAP already had those documents in their possession.

46. As Ms Parker was not aware that there was a paper copy and USB file for Riley that contained updated information, SNAP was not informed or provided with Riley’s current care needs. The vehicle plan, 2016 BSP and the attached document titled “There are just a few things you should know about me” that detailed Riley’s targeted behaviour and transportation needs were not provided to SNAP. SNAP was not made aware of Riley’s symptoms being rated at a level 3 or that he required two carers to support him at all times.

47. On Friday 3 November 2017, the day that respite placement with SNAP was planned to begin, Mr Hays was informed of the FACS approval at approximately 4:45pm. After 5:00pm, Mr Hays attempted to ring FACS to obtain more information about Riley as he had not received the SNAP referral form, but the phones had switched over to a recorded message.

48. To assess a child’s transportation requirements, SNAP relied on information provided by the referring service and/or the caregiver. FACS did not send through any further correspondence, information or documents to SNAP prior to Riley’s respite care placement.

49. On Friday 3 November 2017 at approximately 5:45pm, Ms Ford arrived at Fiona Martin’s house to collect Riley. Fiona Martin and Ms Ford had met previously when Riley was transitioning to Fiona Martin’s care in 2014. Ms Ford had also cared for Riley while he was placed in residential care with SNAP between 2013 and 2014.

50. On arrival, Ms Ford asked Fiona Martin about Riley’s sleeping and eating habits, medication, communication, personal care and transport needs. Fiona Martin told Ms Ford that Riley was able to remove his arms from under the shoulder straps of the car seat restraint and that he continued to try to get completely out of his car seat restraint. Fiona Martin indicated to Ms Ford that she transported Riley in the car by herself, and sometimes with the assistance of Riley’s foster siblings.

51. Fiona Martin provided Ms Ford with a Britax car seat (booster seat) and Houdini Stop Strap that linked the car seat straps across Riley’s chest. The Houdini Stop Strap had two clips which attached to the booster seat straps.

52. Ms Ford asked Fiona Martin why Riley was still transported in a booster seat. Fiona Martin informed Ms Ford that:

“Riley still needs a car seat because at least the straps keep him more safe. Riley can unclip these clips. All this does is buy you some time. If Riley begins to take these off, the seat belt would be next before he starts climbing over the seat and tries to get out of the doors.”

53. Fiona Martin installed Riley’s booster seat in Ms Ford’s vehicle and Riley was placed into the booster seat using the Houdini Stop Strap. Ms Ford then drove Riley by herself to the respite house located at Thornton, New South Wales.

54. Upon arrival at the respite home, Ms Ford transferred Riley’s booster seat from her vehicle into a 2002 Toyota Tarago 8 seater (Toyota Tarago) owned by SNAP. The booster seat was placed in the far back seat (the third row of seats) on the driver’s side and the child locks were activated.

55. Mr Ford caused to be prepared a one page handwritten assessment based on the information provided by Fiona Martin at the time of pick up and Ms Ford’s previous knowledge of caring for Riley.

56. The one page assessment noted the following information:

“If Riley starts unbuckling his special belt on his car seat pull over straight away otherwise he will unbuckle the rest and get out.

Make sure car doors are on child lock.”

57. All SNAP carers were directed to read the one page assessment prior to commencing their shifts with Riley. Ms Ford also spoke to each carer prior to their shifts to inform them of Riley’s care and support needs and behaviours of concern.

58. On Saturday 4 November 2017, prior to the start of Ms Houlison’s shift, Ms Ford informed her that Riley was to be in a five point harness and seated at the back seat. Ms Houlison transported Riley in the Toyota Tarago to and from SNAP’s respite house at Thornton, to Tin Lids Play Centre at Morisset, without an additional carer.

The Incident

59. On Saturday 4 November 2017, Rachel Martin started her shift at approximately 6pm. Ms Ford informed her of Riley’s behaviours of concern when travelling in a vehicle and advised her to pull over safely as soon as practicable if Riley was to take off the Houdini Stop Strap as he may try to open the car door.

60. On Sunday 5 November 2017, Rachel Martin was responsible for transporting Riley from SNAP’s respite house at Thornton back to Fiona Martin’s house in Woy Woy. Rachel Martin told Ms Ford and another SNAP worker that she was having difficulties getting Riley into the car.

59. She finally managed to fasten Riley’s seatbelt and notified Ms Ford that everything was okay. The journey was to take approximately 1 hour and 12 minutes. It required travel predominantly on the M1 Pacific Motorway which has a speed limit of 110 kilometres per hour.

60. At about 5:30pm, Rachel Martin was heading southbound on the M1 Pacific Motorway near Cameron Park NSW when she pulled over and stopped the Toyota Tarago in the breakdown lane.

61. Witnesses observed Riley running on the road with Rachel Martin running after him before they were both struck by a southbound truck.

62. Riley and Rachel Martin sustained fatal injuries and died at the scene.

NSW Police Inspection

65. Following the incident, NSW Police prepared a Crash Investigation Unit Report and took photographs of the Toyota Tarago involved in the incident. It was confirmed that the booster seat was placed in the 3^rd row of the Toyota Tarago, with the belt buckle undone and the driver’s side rear (sliding) door open.

Systems of Work Before the Incident

66. FACS, as the organisation that held the case management for Riley at the relevant time, was responsible for providing and sharing information on Riley’s updated Behaviour Management Plan and other relevant material that detailed Riley’s care needs. FACS did not provide or share any information with SNAP about Riley for the purposes of providing respite care.

67. At the time of the incident, the SNAP referral form asked if the young person has any behavioural difficulties and did not have specific questioning regarding a child’s transportation needs. In any event, SNAP never received the filled out referral form from FACS.

68. For Riley’s respite care placement on the weekend of 3 to 5 November 2017, SNAP relied on its 2013/2014 records of Riley, previous care knowledge, and conversations with Fiona Martin to formulate its care plan and transportation strategy.

69. Riley had significant growth and development since the time he spent in SNAP’s care in 2013 and 2014. The outdated records were not suited to address the risks involved in transporting Riley.

70. SNAP was not informed by FACS that it needed to allocate a second carer for Riley. SNAP did not undertake an adequate risk assessment in relation to Riley’s capabilities, behaviours and care/support needs, including his transportation requirements, that identified that Riley was not safe to travel in the car without an additional carer seated next to him.

71. FACS and SNAP did not allocate a second carer in additional to the driver to sit beside Riley when he was being transported in order to minimise the risk of him extricating himself from the harness and to prevent him from attempting to exit the vehicle.

Systems of Work After the Incident

72. Following the incident, SNAP update its referral form to ensure that it sought information on a child’s transportation needs independently from other behaviour and safety issues.

73. SNAP also developed a separate transport policy. The policy states:

“Assessment of Client

Each person we support transportation needs will be assessed on an individual basis … A risk assessment will be conducted for each person at the time of the referral.

…

Seating in Vehicles

…

In the case that there are 2 support workers in the vehicle, 1 support worker must drive while the other is seated in the back with the person we support.”

SNAP Programs Limited – case on sentence

74. SNAP relied on an Affidavit sworn by Ms Ford on 27 May 2021. Ms Ford participated in the proceedings and was cross-examined by the prosecutor. The content of Ms Ford’s affidavit can be summarised as follows. I will not repeat matters I have already referred to.

75. Ms Ford has 27 years’ experience working in the ‘Out of Home Care’ sector and disability services industry. In 2014 she completed a Certificate IV in Disability and has partially completed a Bachelor of Social Science.

76. Since 27 July 2020, Ms Ford’s involvement with SNAP is as National Manager. She has also continued in her capacity as a director. She is responsible for running the day-to-day operations of the business.

77. SNAP is an acronym of “Special Needs Accommodation Placements”. SNAP is a not-for-profit, non-government organisation which provides support and care for children and adults with challenging behaviours and/or a disability. SNAP is a registered charity with the Australian Charities and Not-for-Profits Commission.

78. SNAP is approved to provide services through the National Disability Insurance Agency (NDIA) and through the NSW Office of Children’s Guardian (OCG). SNAP is also a registered provider under the NDIS. On 22 April 2020, SNAP renewed its registration under the NDIS.

79. SNAP provides a variety of services for clients with disabilities including:

1. Statutory ‘out-of-home care’. SNAP currently has three clients in active ‘Special Care’ residential placements;

2. Long term placements. SNAP has 16 NDIS funded adults and three children living permanently in SNAP houses. SNAP currently leases 14 properties across Central Coast, Hunter New England and Newcastle areas of NSW where residential clients of SNAP stay;

3. Emergency respite placements and respite support services. SNAP currently has four premises from which it offers respite services located at Tenambit, Blue Haven, Gateshead and Maryland. Approximately 28 adults receive respite services through SNAP on a semi-regular basis;

4. House funding programs. SNAP is currently trying to support independent living for six young people between the ages of 16 and 18;

5. Camps, including camps for children and adults. Ms Ford believes that SNAP is the only voluntary out-of-home care registered agency in NSW that facilitates these types of camps;

6. Mentoring and Community Participation to guide young persons and adults. SNAP currently provides regular support to 12 clients who do not permanently live in a SNAP house; and

7. Supported independent living. SNAP currently provides this service to approximately 16 adults.

80. In order to provide the above services, SNAP engages a range of staff and occasionally, volunteers. SNAP currently employs 75 staff members, 61 of which are support workers. SNAP also engages contractors to do its gardening work such as lawn mowing at each of their premises.

81. Ms Ford, on behalf of SNAP, deeply regrets the incident and acknowledges the devastating and ongoing impact that the incident has had on Rachel’s family, and Riley’s family and carers. She describes the incident as having a significant and profound impact on SNAP and its staff.

82. Immediately following the incident, SNAP conducted extensive debriefing sessions for all staff affected by the incident which was undertaken by a consultant experienced in grief and loss. Counselling was offered to every staff member and SNAP extended this offer to the families of the victims. Arrangements were made so that any staff member who wanted to who wanted to attend the funerals could do so without loss of pay.

83. Ms Ford, on behalf of SNAP, accepts responsibility for its acts and omissions that contributed to the death of Riley Shortland and Rachel Martin. She deposed that there has been a large effort to improve SNAP’s safety systems to prevent a similar incident occurring again.

Improvements to Systems of Work

84. Following the incident, an internal review was conducted by SNAP’s directors, including Ms Ford. SNAP reviewed various documents and information, and its induction, training and intake processes to amend and improve its safety systems.

85. In February 2018, SNAP reviewed its control measures regarding operation and transportation of clients in motor vehicles and developed and introduced a comprehensive Transport Policy.

86. In March 2018, SNAP conducted training on its updated Transport Policy, duty of care, workers obligations and SNAP’s Code of Conduct. All staff employed at the time attended the training, and it is now part of SNAP’s induction so that every new staff member undergoes the training on commencement of employment.

87. SNAP updated its Client Intake Referral and Application Form which includes a “Medical and Support Needs Information” section that asks detailed questions about the specific support needed for each client. This includes whether the client has behavioural difficulties, any safety risks and any special requirements regarding transportation.

88. SNAP placed a link to an online version of its referral form on its website, which can be filled out by the referring party online.

89. SNAP developed and implemented a pro-forma risk assessment document that must be completed for children and young people who are transported by SNAP titled “Transportation of People We Support (PWS) Risk Assessment”.

90. SNAP developed and implemented a new induction handbook. All new staff members receive the handbook during their induction.

91. SNAP’s most significant responses to the incident are:

1. SNAP has refused referral placements when a risk assessment indicates safety risks, or when a second carer is necessary but not provided for in relevant funding. The document that SNAP uses outlines that a referral may be declined over the phone before any intake or referral form is received if SNAP does not have the capacity to provide the service for the person or funding does not meet the required support requested; and

2. SNAP conducts risk assessments for respite placements and considers transportation as a possible risk. SNAP uses its “Transportation of People We Support (PWS) Risk Assessment” form for this purpose.

DoCJ – case on sentence

92. FACS relied on two affidavits sworn by Deputy Secretary, Simone Czech, affirmed 14 May 2021 and 4 June 2021. The Deputy Secretary was not required for cross-examination. Her evidence can be summarised as follows.

93. The Department is not insured for the payment of any fine arising from these proceedings.

94. New South Wales State Government Departments are administratively divided into Clusters, which are in turn divided into Divisions containing separate functions. The Division is allocated funding by Treasury on the basis of State Outcomes. The relevant State Outcome involves the functions of:

1. out-of-home care and permanency support;

2. child protection;

3. targeted early intervention; and

4. domestic and family violence support.

95. All expenses of the Division are meant to be covered at first instance by funds within its budget. To the extent that the Department is over-budget it must request further funds from Treasury which will be allocated to the extent that such extensions are granted. At times, the Department seeks additional funding from government, but is not always successful.

96. In the event of the imposition of a fine in this matter, it will be paid from the expenses budget within the operating Division from which the liability arose. This will in turn have an impact on the activities that can be undertaken by the Department within that Division.

97. Funding within the Division is always tight. The Department is regularly required to prioritise and triage the resources it has to meet the budget and in making any submissions to Government for further funding.

98. The main expenses of the Division are staffing and out-of-home care. Both expenses are difficult to curb as they are dictated to a large extent by the number of children at risk of significant harm or requiring out-of-home care. The Department presently supports about 16,000 in out-of-home care in New South Wales. By way of illustration, a child protection case worker earns on average $107,000 per annum and a manager case worker earns on average $139,000 per annum, keeping a child in residential care costs approximately $320,000 per annum and the placement of a child with a non-government organisation (NGO) costs approximately $58,000.

99. There is presently funding for about 30% of children reported to be at risk to be responded to by way of a face-to-face assessment. The Department is constantly required to engage in triaging and prioritising the way in which matters are to be appropriately dealt with. Demand for the Department’s services relating to child protection continues to increase. Further, the costs of caring for each child continues to escalate. It is also necessary to find room within the budget to provide further and additional training to case workers on various topics and to engage in new and valuable initiatives.

100. The Department has a wide and extensive range of policies and procedures designed to ensure that it complies with its WHS obligations. At the time of commencement with the Department, a worker is required to undergo an extensive induction process, which is checked by senior staff.

101. The Department has available on its intranet all relevant policies dealing with WHS risks described as the FACS Workforce Safety and Wellbeing Policy Framework (the Framework). When accessed on the intranet the Framework contains hyperlinks to relevant policies that are referred to.

102. The Department uses a WHS risk assessment tool, which allows workers to undertake a structured risk assessment and to complete a risk action plan. The document is of general application and not confined to child protection or out-of-home care. The Work Health Safety Risk Assessment Tool Instruction and Implementation Guideline provides guidance on how to use the risk assessment tool.

103. The Department has a specific written procedure to provide guidance to FACS workers performing roles in the community known as the FACS Work Health and Safety Working in the Field Procedure. The procedure seeks to reduce risks arising from the unstructured and unpredictable nature of frontline work and to account for the fact that it is more difficult for the Department to provide immediate support to workers in the field as opposed to an office environment. The procedure provides guidance in relation to communication, the number of workers required to undertake tasks, safe travel, visiting and meeting clients at their home and in other places, entering vacant residences, first aid emergencies and pathways for further guidance and advice. The procedure is designed to be read with several other policies of general application.

104. The Department also uses a structured tool to prevent the occurrence of client-initiated violence known as Managing Workplace Violence Guideline and Safe Work Practice. These include the client context risk and management tool which requires consideration and planning for a client’s history, drug and alcohol use, mental health and acquired brain injuries and the appropriate risk control options.

105. In 2017 the Department had in place WHS Safe Travel Procedure covering diverse issues arising from transportation by the Department’s workers. It specifically deals with transportation of children by motor vehicle. That policy is still in place however the Department has developed a further specific policy to guide safe transportation, which I will return to.

106. The Department has a Practice Mandate for transferring case management of a child to an NGO. Under the mandate, it was the Department’s practice to transfer the BSP with the documents to be provided. The mandate is currently under further review.

107. The Department uses Behaviour Support In Out-of-Home Care Guidelines to provide practical guidance as to the development and use of BSPs including links to videos to understand trauma in children and young people. The guidelines explain the purpose of a BSP and the key considerations in developing it. The guidelines explain triggers, such as targeted behaviours to consider when determining whether a BSP is required and the circumstances where a BSP is mandated together with the process for creating a BSP as well as monitoring and reviewing it.

108. The Department periodically audits itself to ensure that its WHS systems are compliant and are in accordance with best practice. The Department operates a WHS State Committee to ensure it complies with its obligations, reviews its practices and makes improvements to its systems.

109. As at June 2017 there were 8,780 children and young people in out-of-home care including those managed by the Department and NGOs. Of those children, 16.5% have a disability and were regularly transported by support workers for various reasons. It is estimated that many thousands of transportations occurred safely under the care of the Department and NGOs.

110. The Deputy Secretary, on behalf of the Department, acknowledged that the circumstances of the case were deeply distressing and she extended her deepest condolences to the families and the loved ones of Riley and Rachel. She described the outcome of the incident on 5 November 2017 as deeply tragic. She acknowledged that Rachel Martin was a casual support worker undertaking her Certificate IV in Community Services and that she was pregnant. She acknowledged that Riley was only eight years of age at the time of his death and that the people who cared for him considered him to be happy and cheeky. The Deputy Secretary also acknowledged the acute distress suffered by the driver of the truck who was involved in the incident. The Deputy Secretary noted that a number of individual employees of the Department were deeply affected, particularly those who were involved in Riley’s care and in particular the workers referred to in the Agreed Statement of Facts. The Secretary of the Department has been notified of the circumstances and has received regular updates as have the responsible Ministers. The Deputy Secretary expressed an apology to the family and friends of Riley and Rachel and to the broader community.

111. The Department has undertaken wide-reaching structural improvements since the incident and commissioned a Serious Case Review following an Internal Child Death Review. The Department has co-operated with SafeWork into its investigation of the matter. Development case workers of the Department provided compassionate support to Fiona Martin following the incident. Staff from the Department attended both the funerals of Riley and Rachel to provide support and to pay their respects to the families. Representatives of the Department reached out to Rachel’s family to provide support. Representatives of the Department met Fiona Martin on 27 September 2019 to provide a verbal and written apology for their role in the incident causing the deaths of Riley and Rachel. That apology included the following:

The transfer of case management back to DCJ was rushed and did not take a child-focused approach. The approach relied on DCJ having supervisory care of Riley and as a result meant that staff did not know you or Riley and had a limited understanding of Riley’s needs. DCJ staff were unable to provide SNAP with relevant information about Riley’s support needs for respite …

Riley should not have been transported in the manner that he was on the motorway, without an appropriate harness and with only one adult to support him. Having a special harness to keep Riley safe in the car is something you had advocated for on multiple occasions.

112. A director of the Child Safety and Review at the Department met with Ms Taylor to provide her with an apology.

113. Following Riley’s death the Department conducted a detailed review into the incident and the relevant factors leading up to it. The report included critical findings in relation to the incident which included:

1. DCJ did not collate and review the assessments made as to Riley’s capabilities and behaviours impacting on his transportation requirements when it became responsible for supervising his placement in September 2017;

2. accordingly DCJ did not identify control measures to eliminate and minimise risk by requiring a properly approved restraint harness which prevented Riley from removing himself from the car seat; or a properly approved harness and dedicated second carer; or if those measures were unavailable, requiring that Riley was not to be transported by vehicle unless a safe means of travel was identified;

1. DCJ did not provide SNAP with the 2016 BSP which was the most up-to-date BSP available at the relevant time. The online key information and directory system, KiDS, only included Riley’s 2014 BSP and not the updated version prepared in 2016. SNAP did not have the updated BSP prior to the placement;

2. part of the context to the above is that DCJ did not have a clear policy, procedure and/or guidelines relating to supervising placements under s 141 of the Children and Young Person (Care and Protection) Act 1988 because supervisory care was intended to operate in limited and exceptional circumstances where the designated agency was ceasing to operate or no longer able to fulfil its case management responsibilities.

114. The report recommended five recommendations which have been implemented.

115. A further review into the use of temporary care agreements and clause 32 of the Care Regulation were undertaken.

116. The Department has implemented a range of policies following the incident to ensure that workers and children are not placed at risk of harm in the transportation of children.

117. The Department has implemented a new specific policy relating to the transportation of children. The policy requires the identification of hazards and an assessment of risks and controls to be implemented to eliminate or minimise that risk.

118. Beyond the recommendations of the Internal Child Death Review the Department has conducted an audit of BSP’s for children and young people in out-of-home care. It has also updated the training given to its case workers on BSPs.

119. The Department has also entered into consultation with Transport for NSW relating to the transport of young people with disabilities.

120. The Department has migrated to a new frontline information management tool system known as ChildStory. This was undertaken to ensure that all relevant workers have access to the most up-to-date information relating to children in care.

121. Unrelated to the incident, the Department has introduced a new user friendly WHS incident report and investigation solution software program known as SafetySuite.

122. In the future, the Department is considering a development with further proposals relating to the update of the ChildStory system, training for case workers and development of WHS training modules.

123. The Deputy Secretary outlined a number of other matters relevant to the case. Riley had very complex needs making it difficult to place him in respite care, but also increasing the need for it. Allambi was not ready to take on Riley’s case management because they did not have access to respite carers and the cost of Riley’s care to them exceeded the care allowance that had been granted. There was an element of urgency in the supervision and transfer of Riley’s care. HWNS was ceasing to provide out-of-home services. Fiona Martin was in urgent need of respite. There was no other approved restraint harness available for use in Australia. The Houdini stop was not completely effective, but slowed Riley’s escape. Investigations are presently underway into the manufacture of a bespoke harness. In Riley’s case, if this had been pursued it would have still have been necessary to obtain funding from the NDIS and approval from other authorities. FACS has now established a protocol for liaising with the NDIS through a dedicated team.

Consideration

124. I have had regard to the objects of the Act set out in section 3 and the purposes of sentencing set out in section 3A Crimes (Sentencing Procedure) Act 1999.

Objective Seriousness - SNAP

125. The offences committed by SNAP are involve substantial objective gravity.

126. The risk of Riley freeing himself from his seat belt and trying to exit from the moving vehicle was conveyed to SNAP by Fiona Martin when Ms Ford arrived to collect him for the respite placement. That was the first time that SNAP became aware of the risk.

127. The likelihood of the risk occurring was high. It was known that Riley had a propensity to free himself from his seat belt and that the Houdini stop device was only effective to slow him down. Ms Ford was told by Fiona Martin that after freeing himself, Riley would try to exit the moving vehicle. SNAP did not have actual knowledge that Riley required a second carer to travel with him. By its plea, SNAP admits that it should have known and made those arrangements.

128. The risk could be minimised but not eliminated.

129. The potential consequences of the risk included the death or serious personal injury to any person in the car with Riley and of other road users.

130. SNAP by its plea admitted that it should have conducted an adequate risk assessment and identified that a second carer should have been allocated to sit next to Riley whilst he was being transported in a vehicle. SNAP did assess the risk based on what it was told by Fiona Martin. Ms Ford ensured that the risks as she perceived them were passed on to Riley’s carers for the weekend. The failures by FACS limited the ability of SNAP’s senior management to perform an adequate risk assessment. FACS knew for about two weeks that Riley was likely to be placed with SNAP for respite care, but it did not forward the appropriate documents or complete the SNAP referral form. Rather than having the opportunity to carefully plan for Riley’s care and to provide adequate staff for his care, SNAP arrived at the start of the respite placement without knowing the crucial safety information that it needed. Ms Ford left Thornton to collect Riley even before final approval by FACS was given. Mr Hays was continuing to seek information from FACS even up to that point in time. SNAP’s ability to conduct a comprehensive risk assessment during the course of Riley’s respite placement and to identify the appropriate control measure was limited.

131. The extent of the harm caused was significant. It involved the tragic deaths of Riley, Rachel and Rachel’s unborn child and the trauma suffered by the truck driver and others at the scene.

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

Objective Seriousness - DoCJ

133. The offence committed by DoCJ is one of considerable objective gravity.

134. The risk of Riley freeing himself from his seat belt and seeking to exit from a moving vehicle was a risk that was actually known to FACS. The need for a second carer travel with Riley whilst he was being transported in a vehicle was known to FACS. Riley’s BSP and the “things you should know about me” document were kept on the FACS file and should have been uploaded to KIDS. FACS failed to pass on important safety information about the care of Riley that was in its possession. No-one in FACS seemed to accept responsibility for conveying the crucial information to SNAP by completing the SNAP referral form or by locating the file and passing on the BSP.

135. The likelihood of the risk occurring was high. It was known that Riley had a propensity to free himself from his seat belt and that the Houdini stop device was only effective to slow him down. It was also well established that after freeing himself, Riley would try to exit the moving vehicle.

136. The potential consequences of the risk included the death or serious personal injury to any person in the car with Riley and of other road users.

137. The steps that could have been taken to minimise the risk were simple and well documented on Riley’s file.

138. The risk could be minimised but not eliminated.

139. The required steps could have been implemented at no cost and no inconvenience to FACS.

140. The extent of the harm caused was significant. It involved the tragic deaths of Riley, Rachel and Rachel’s unborn child and the trauma suffered by the truck driver and others at the scene.

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

Deterrence

142. The penalty imposed in relation to this offence must provide for general deterrence. Employers must take the obligations imposed by the Act very seriously. The community is entitled to expect that both small and large employers 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].

143. The penalty imposed must also provide for specific deterrence.

144. SNAP continues to have a number of disadvantaged persons in its care and it engages a number of workers to care for them. The aim of SNAP’s operation is to minimise risks to the persons it cares for and its workers are put at risk by furthering this aim. Prior to the incident, I am satisfied that SNAP was dedicated to the safety of its workers and clients. After the incident, it has taken considerable steps to improve its safety systems.

145. FACS continues to have a significant number of disadvantaged children in its care and to have a significant number of workers involved in their care. Both of those classes of persons are exposed to many varied risks. FACS had at the relevant time extensive safety systems that were well documented and readily accessible by its staff. The incident has caused a significant number of improvements to be made to the existing systems.

Aggravating Factors

146. 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.

147. Riley Shortland was a vulnerable victim by reason of his age and disability: s 21A(2)(l) Crimes (Sentencing Procedure) Act 1999.

Mitigating Factors

148. Neither offender has any record of previous convictions s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999. SNAP was incorporated in 2012. FACS has been in existence for considerably longer.

149. The offenders have good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. FACS has undertaken a substantial and wide sweeping review of its operations as a result of the incident. It has taken steps beyond the recommendations identified by the review. FACS has demonstrated by its actions that it has good prospects of rehabilitation. SNAP has also undertaken a comprehensive review of its systems following the incident. SNAP also has demonstrated by its actions that it has good prospects of rehabilitation.

150. The offender has demonstrated remorse: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. Deputy Secretary Czech on behalf of FACS has accepted responsibility for the incident and expressed genuine contrition and remorse. Ms Ford on behalf of SNAP has accepted responsibility for the incident and expressed genuine contrition and remorse.

151. The offenders 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%.

152. The offenders co-operated with the SafeWork investigation: s 21A(3)(m) Crimes (Sentencing Procedure) Act 1999.

Other matters

153. This is unique case in the WHS jurisdiction and has provided significant challenges in arriving at appropriate penalties for each offender. It is not a case where the risk could be eliminated through extensive planning or use of an alternative car restraint, because there was no approved alternative available. It is not a case where shortcuts were taken to increase profits. It involved the unpredictable behaviour of a child with extensive need who did not understand safety rules. However, this increased the need for special care to be taken to ensure his safety and that of the carers looking after him. The precise risk was known to FACS and could have been minimised if it had passed on the crucial safety information. It did not do so through a failure of its workers to undertake simple administrative tasks. SNAP tried to minimise the risk it was made aware of in difficult circumstances.

154. Both the Department and SNAP had been involved in Riley’s care for an extended period. It must be recognised that the support that the offenders provided for Riley had significant social utility and was provided in the context of a sector with finite resources.

155. The families of Rachel and Riley, and Riley’s carers, have suffered unimaginable loss, pain and psychological trauma. The reading of the Victim Impact Statements in court and the video collage played at Riley’s funeral were moving tributes to both of them and demonstrated the enormity of the harm caused by this tragic and preventable incident. It is also the first time the Court has had to deal with the death of a child in this jurisdiction.

156. In weighing all of the relevant factors in this sentencing exercise, it is appropriate to impose penalties that are significantly more lenient than would otherwise be imposed in a commercial setting.

157. Rachel Martin should be publicly commended for her bravery in pursuing Riley after he escaped from the vehicle. She acted without regard for her own safety to try to save Riley’s life. She showed extraordinary courage in doing so.

Penalty - SNAP

158. SNAP Programs Limited is convicted.

159. I have taken into account the Victim Impact Statements prepared and read in Court by Ms Taylor, Fiona Martin, Brenda Martin (Rachel’s mother) and Amanda Olsen (Rachel’s sister) in determining the appropriate penalty to be imposed on the basis that the impact of death on the families of Riley and Rachel is an aspect of harm done to the community.

160. I have taken into account the principle of totality. The two offences arise from the same incident. The s 19(1) offence is the more serious because there were more people exposed to a risk of death or serious injury. For transparency in the sentencing exercise, I will nominate the appropriate fine for each offence but will reduce the fine for the s 19(2) offence to reflect the just and appropriate measure of the total criminality involved.

161. The appropriate fine for the s 32 offence for the breach of s 19(1) duty is one of $80,000 that will be reduced by 25% to give effect to the plea of guilty. I impose a fine of $60,000 for this offence.

162. The appropriate fine for the s 32 offence for the breach of s 19(2) duty is one of $40,000 that will be reduced by 25% to give effect to the plea of guilty. I impose a fine of $30,000 for this offence.

163. The total fines payable for the two offences is $90,000.

164. SNAP Programs Ltd is to pay the prosecutor’s costs of the proceedings agreed at $75,000.

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

Penalty – State of New South Wales

166. The Department of Communities and Justice is convicted.

167. I have taken into account the Victim Impact Statements prepared and read in Court by Ms Taylor, Fiona Martin, Brenda Martin (Rachel’s mother) and Amanda Olsen (Rachel’s sister) in determining the appropriate penalty to be imposed on the basis that the impact of death on the families of Riley and Rachel is an aspect of harm done to the community.

168. The appropriate fine for the offence is one of $200,000 that will be reduced by 25% to give effect to the plea of guilty.

169. I impose a fine of $150,000.

170. The Department of Communities and Justice is to pay the prosecutor’s costs of the proceedings agreed at $70,000.

171. 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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Amendments

18 June 2021 - Amended orders 8 and 9 for Department of Communities and Justice from:

8. SNAP Programs is to pay the prosecutor's costs ...

9. ... 50% of each fine ....

Decision last updated: 18 June 2021