DPP v Amicus [2025] VCC 1973

Reports Cited: Sentencing Advisory Council, Sentencing Occupational Health and Safety offences in Victoria: Report and Recommendations (Report, February 2025); Christopher Maxwell QC, Occupational Health and Safety Act Review (Report, 2004).

1. Amicus Community Services Ltd (Amicus) (A.C.N. 649 815 289) pleaded guilty to the following charges:

(a) One charge of failing to ensure that persons other than employees are not exposed to risks to their health or safety contrary to section 23(1) Occupational Health and Safety Act 2004 (Vic) (the Act), which carries a maximum penalty of 9000 penalty units for a body corporate;

(b) One charge of failing to notify WorkSafe immediately after becoming aware that an incident has occurred at a Workplace contrary to section 38(1) the Act, which carries a maximum penalty of 1200 penalty units for a body corporate.

1. The court's task is to impose an appropriate penalty on the offender. I will start by outlining the circumstances of the offending.

1. The following summary is based on a Summary of Prosecution Opening for Plea dated 22 October 2025.[1] This was an agreed document.
2. Amicus is a not for profit disability service provider. Certain service provided by them are funded by the National Disability Insurance Scheme (NDIS).
3. Jo Dywer was an NDIS participant who had been placed in the care of Amicus by her mother Marylin Keogh in approximately 2013. Jo had several very significant disabilities, including: Albrights Hereditary Osteodystrophy Syndrome, Lennox-Gestault Syndrome of Epilepsies, moderate-severe intellectual disability and low-functioning autism. Because of her epilepsy, Jo experienced frequent seizures.
4. Jo had experienced seizures for most of her life and, the week prior to her death, was undergoing an electroencephalogram (EEG) monitoring study through Dr Mark Cook and Seer Medical.
5. On 29 April 2021, Jo had electrodes fitted to her scalp to provide monitoring of her seizures for a period of four days, and a separate video unit was placed on a moveable trolley which was set up to capture her physical responses during her seizures.
6. Jo received full-time (24 hour) supported independent living services by Amicus' employees in her home at 1/51 Watson Avenue, Eaglehawk (the Workplace), which was owned by Haven Homes.
7. Amicus' employees caring for Jo worked in shifts. One of those shifts was the overnight shift during which one carer was rostered.
8. Amicus had in force a 'Community Support Worker Manual' to guide the work of its carers. The Manual provided that the carer on duty overnight was required to actively monitor and support Jo during the night, by reference to 'monitoring requirements'.
9. By 5 May 2021, the batteries on the EEG unit were exhausted by 8:30 pm (as the clinical study had ended). However, the video camera continued to operate throughout the night.

1. On 5 May 2021 at 10:14 pm, Amicus's employee Georgina Knox commenced her shift at the Workplace. Ms Knox was the only carer for the 'active overnight' shift that evening.
2. On 6 May 2021, at about 1:18 am, Jo suffered a seizure and fell out of her bed onto a crash mat placed adjacent to it. This sounded a loud audible alarm for about 30 seconds which is designed to alert staff to just such an eventuality. The alarm was in place to ensure that Amicus could, through its carer, respond appropriately to Jo's seizure. Ms Knox did not respond to the alarm.
3. There is no evidence before the court to explain why Ms Knox did not respond to the alarm. Prosecution and defence agreed that the only two realistic explanations are that she was asleep or that she was not present at the workplace when the alarm sounded.
4. Amicus did not investigate the circumstances of its employee's failure to respond to the alarm.
5. Dr Cook reviewed the video footage and noted that Jo stopped breathing at 1:42 am which is likely the actual time of death. According to the video, no visual check was made of Jo until 9.06 am, when relieving shift employee Kim Benton checked on Jo and found her non-responsive on the floor. Police and ambulance were notified.
6. Ms Knox failed to respond to WorkSafe's offer of a record of interview. Accordingly, there is no explanation for her failure to monitor Jo during the shift.
7. Ms Knox was aware of Jo's care needs, including on active night shifts, and trained new staff on these care needs.

1. On 6 May 2021, Amicus notified Victoria Police of Jo's death and on 7 May 2021, Amicus notified the National Disability Insurance Commission.
2. Amicus did not immediately notify WorkSafe of Jo's death as it was required to do.[2]
3. WorkSafe was only advised of the incident by Ms Keogh on 16 December 2021 when she became frustrated with the investigation by Victoria Police, Amicus and the Coroner's office. As a result of an initial intervention by WorkSafe investigators, Amicus made a formal notification to it on 21 January 2022.
4. During the investigation, WorkSafe spoke with Dr Linda Dalic, a Neurologist. Dr Dalic first treated Jo at Austin Health in 2017 and was her treating physician at the time of her death.
5. Dr Dalic outlined the overnight care Jo required which is the foundation for Charge 1. She further opined that:

"The risk of nightly seizures was very high. [The deceased] had monitoring that confirmed she has seizures EVERY night from sleep which is known to increase the risk of Sudden Unexpected Death in Epilepsy Patients (...estimated prevalence of 1.16 cases per every 1000 people living with epilepsy). Risk of injury was also high as [the deceased] is impulsive and previously fractured her legs following seizures".

1. The relevant pleaded risk to Jo's health and safety was that, 'if she experienced a seizure, there was a risk of death or serious injury as a result of obstructed airways, coming into contact with nearby hazards, hypoxia or uncontrolled seizures leading to death'.[3]
2. Jo required 'supported independent living services to reduce the risk in the event of a seizure, including by ensuring her airway was not obstructed...'.
3. The risk to Jo's health and safety could be reduced by ensuring she was regularly and directly observed by the person providing supported living services between the hours of 12.00 am and 6.00 am.
4. Amicus did not take measures to ensure Jo was regularly and directly observed between the hours of 12.00 am and 6.00 am.
5. The reasonably practicable measures that Amicus should have taken to ensure Jo was regularly and directly observed between the hours of 12.00 am and 6.00 am were setting monitoring requirements under Amicus's Community Support Worker Manual being:

(a) Requiring employees to conduct a close physical check of Jo by attending at Jo's bedside at least every two hours (and when the seizure alarm mat sounds) and visually observing Jo over a period of 1-2 minutes to ensure Jo's colour can be reliably observed and that her breathing (rise of chest, sound of breath) can be reliably detected;

(b) Providing employees with information, instruction and training as to directly observing Jo at least every two hours by attending her bedside;

(c) Enforcing the system with an adequate checklist for observations made and when those observations were made; and

(d) Employees being required to sign off that they have read and understood the monitoring requirements under the Community Support Worker Manual prior to commencing their first unsupervised active shift.

1. In the aftermath of the incident, Amicus implemented the following remedial measures:

(a) Active Night Monitoring (blank form) dated 29 July 2021. This document has half hourly intervals for making notes; and

(b) Continuous Improvement Plan which references the following documents:

(i) Updated Supported Independent Living Manual (now including monitoring requirement; and

(ii) Updated Position Descriptions (now including monitoring requirements).

1. In DPP (Vic) v Frewstal Pty Ltd,[4] the Court of Appeal outlined the principles by which a sentencing court should be guided when assessing the objective seriousness of offending against the Act. Priest and Kaye JJA, explained that:

(a) First, unlike cases of unlawful homicide, the occurrence of death or serious injury is not an element of the offences charged. An offender is punished according to the gravity of the breach of duty owed under the Act, not according to the result or consequences of the breach. This is an important but not necessarily well understood feature of this area of the law.

(b) Occupational Health and Safety Act offences are to be contrasted with offences under the Crimes Act 1958 (Vic) which are aimed at punishing conduct that results in death or serious injury.[5]

(c) Secondly, the gravity of the breach is measured by two factors:

1. The seriousness of the breach itself; that is, the extent to which the offender has departed from its statutory duty; and
2. The extent of the risk of death or serious injury which might result from the breach.

(d) Thirdly, an assessment of the extent of the risk itself involves consideration of two factors:

(1) The likelihood of the occurrence of an event as a result of the breach such as the event that occurred in the particular case endangering the safety of employees or others; and

(2) The potential gravity of the consequence of such an event, particularly whether there is a risk of death or serious injury.

1. The principal dispute between the parties in this case concerned the second of these 'Frewstall factors': the extent to which Amicus departed from its statutory duty.
2. In an earlier decision of the Court of Appeal, the Court explained that 'to a substantial extent the seriousness of a breach must be assessed by reference to [the] potential consequences and the measure of evidenced disregard concerning ... safety'. [6]
3. The duty imposed by section 23 of the Act required Amicus to 'ensure, so far as is reasonably practicable' that a person in the position of Jo was 'not exposed to risks to her health or safety arising from the conduct by Amicus of its undertaking'.
4. Section 20(1) explains that, to meet such a duty, a person in the position of Amicus is required:

(a) to eliminate risks to health and safety so far as is reasonably practicable; and

(b) if it is not reasonably practicable to eliminate risks to health and safety, to reduce those risks so far as is reasonably practicable.

1. It was no part of the prosecution case that the identified risks to Jo's health and safety could be eliminated. Therefore, Amicus's duty was to reduce those risks so far as was reasonably practicable.
2. In applying these provisions, a Court must have regard to the 'principles of health and safety protection' set out in section 4 of the Act. Three of those principles are particularly relevant:

(1) The importance of health and safety requires that employees, other persons at work and members of the public be given the highest level of protection against risks to their health and safety that is reasonably practicable in the circumstances.

(2) Persons who control or manage matters that give rise or may give rise to risks to health or safety are responsible for eliminating or reducing those risks so far as is reasonably practicable.

(3) Employers and self-employed persons should be proactive, and take all reasonably practicable measures, to ensure health and safety at workplaces and in the conduct of undertakings.

1. Finally, section 20(2) provides that regard must be had to the following matters in determining what was, in May of 2021, reasonably practicable in relation to ensuring Jo's health and safety:
   1. The likelihood of the hazard or risk concerned eventuating;
   2. The degree of harm that would result if the hazard or risk eventuated;
   3. What the person concerned knows, or ought reasonably to know, about the hazard or risk and any ways of eliminating or reducing the hazard or risk;
   4. The availability and suitability of ways to eliminate or reduce the hazard or risk; and
   5. The cost of eliminating or reducing the hazard or risk.
2. It is clear from an examination of these provisions that the duty owed by Amicus under section 23 was a very onerous one. This in turn reflects the reality that, as a specialist provider of disability services under the NDIS, in taking on the care of a person such as Jo with her range of disabilities and vulnerabilities, Amicus had a responsibility to provide her with the 'highest level of protection' that was reasonably practicable in the circumstances. Jo was the only person to whom Amicus owed this duty at this location. It was for Amicus to provide the staffing contingent necessary to meet the duty and to equip those staff with everything they needed to meet the duty. Amicus was required to ensure that its processes and procedures were appropriate to the task.

1. An assessment of the extent of Amicus's departure from its statutory duty necessarily requires an understanding of what Amicus was required to do to comply with that duty and then a comparison between that standard and what it actually did.[7]
2. It is necessary to start with what Amicus was required to do.
3. As Mr Young KC, who appeared with Simone Tatas, for the prosecution submitted, the required measures amounted to no more than Amicus implementing and give effect to its own Manual.
4. In a section of that Manual headed 'Active night duty', each 'participant'[8] who was being cared for by Amicus was required to be monitored and supported over night 'according to:
   • requirements detailed in their support plan or health management strategies
   • immediate needs'.
5. The Manual explained that the information to guide staff in monitoring and supporting participants 'should include the type of monitoring required including:
   • How often staff are required to check the Participant
   • How staff are to check the participant, for example, is a close physical check required or is a visual observation from the bedroom doorway sufficient
   • If any specific documentation is required in relation to the check.

Active night monitoring is to be recorded on an Active Night Monitoring Form tailored to individual monitoring needs of the participant'.[9]

1. It is apparent that, to give effect to the overnight monitoring part of the Manual in a particular case, Amicus was required to stipulate with precision in a highly prescriptive manner what its employees had to do to meet the individual needs of a person being cared for such as Jo. This individualised tailored care planning is consistent with the individualised nature of the NDIS.
2. Although the Manual does not state in terms that the information to guide staff must be reduced to writing, I accept the prosecution submission that to meet the requirements of 'reasonably practicable' under the Act, it must be.[10]
3. It is apparent that Amicus had no difficulty making the required changes to its procedures after the events that gave rise to the charges before the court. There was no cost identified with making those changes and it is not suggested that the changes have impeded the work performed by Amicus.
4. Turning then to what was in place at the relevant time.
5. It is necessary to consider the evidence before the court concerning the 'relevant measures in place' at Amicus to meet its duty to minimise the identified risks to Jo's health and safety. This can best be done by quoting from the agreed prosecution opening which in turn draws on the evidence given by Amicus employees at the committal hearing:

[33] Employees were required to check on the deceased every 15-30 minutes. The general system of conducting the 15-30 minute overnight checks was that the employee would stand at the open doorway and observe the deceased and listen to her breathing and noting her position. The deceased was lit by the light from the hall and a night light. If the employee had any concerns regarding her breathing or position they would go to the deceased's bedside and conduct a closer check. Although the general procedure for overnight checks was consistent, employees had different practices concerning when to make a direct observation. The information regarding conducting checks was communicated to employees during their initial training during shadow shifts. > > [34] However: > > a) there was no documented direction as to when or how often the checks were to be done, nor what was to be done during the checks; > > b) there was no instruction to conduct a close check by default, even if a seizure had not been observed or the seizure mat alarm had not sounded; and > > c) there was also no explicit requirement to document the checks unless a seizure had been observed.[11]

6. It is to be recalled that on the morning of 6 May 2021, as revealed by the video recording, the Amicus carer on duty Ms Knox did not once check on Jo between 12.00 am and 6.00 am. In fact no check was made of Jo until the day shift carer checked shortly after 9.00 am.

1. Amicus submits that 'the relevant measures in place evidence that there were measures which, while not as safe as reasonably practicable, did not constitute a great falling short of Amicus's obligations'.[12] It further submits that 'Amicus's departure from its statutory duty was not to a high degree'.[13]
2. The prosecution, by contrast, submitted that 'the offending is serious and reflects a significant departure from [Amicus's] statutory duties'.[14]
3. In the case of CICG,[15] the Court of Appeal explained that:

How and why the failure [to comply with the statutory duty] occurred is, relevant to sentencing. In assessing the company's culpability, it will be relevant to know, for example, whether the breach was the result of a failure to adhere to systems put in place by management or, alternatively, was the result of a failure by management to establish adequate safety systems and procedures in the first place.[16]

4. The evidence before the court demonstrates that, by failing to implement its Manual in the way the Manual envisaged, Amicus manifestly failed to establish adequate safety systems and procedures. While I accept that there was a monitoring practice that was passed on by employees orally, this is not a safety system as the events of the night in question clearly reveal. This was not a case of employees failing to adhere to systems put in place by management. It therefore falls into the more serious category of breach as explained by the Court of Appeal in CICG.
5. For these reasons, I accept the prosecution submission that the breach of the Act by Amicus is properly characterised as reflecting a significant departure from its statutory duties.[17] I reject the defence submission that Amicus's 'departure from its statutory duty was not to a high degree'.[18]
6. In light of the very high degree of dependency exhibited by Jo and the specialised nature of Amicus as a federally funded disability provider, the moral culpability of Amicus is very considerable.
7. Turning to the second charge of failing to report Jo's death to WorkSafe. The explanation for this failure is that it was an oversight. The matters was reported to police and the NDIS regulator. I accept there was no attempt to avoid scrutiny. Amicus could quite reasonably have assumed that the NDIS regulator may have informed WorkSafe. After all many regulators with overlapping remits have MOUs for this very purpose.
8. Amicus has now updated its procedures so that any future reportable incidents are reported to WorkSafe.
9. I consider charge 2 to be a relatively low level example of this offence.

1. It will be recalled that the incident at the workplace on 6 May 2021 claimed the life of Joanne Dwyer.
2. Prior to the hearing of the plea, the prosecution filed a victim impact statement with the court pursuant to section 8K of the Sentencing Act 1991 (Vic) ('Sentencing Act'). The statement was completed by Jo's mother Marylin Keogh and was very detailed. In the statement, Ms Keogh explained to the court the impact on her of her daughter's death in the circumstances described earlier in these reasons.
3. The parties disagreed about the admissibility of the statement and its relevance to the court's sentencing task.
4. The prosecution contends that Marylin Keogh is a 'victim' of the offence to which Amicus pleaded guilty. Amicus submits that she is not a 'victim' in the legal sense. It contends that the victim impact statement is inadmissible because the prosecution is unable to prove that Jo's death was caused by Amicus's failure to comply with the law.[19]
5. Without resolving this dispute, and with the consent of defence, I permitted Ms Keogh to read her statement in its entirety at the pre-sentence hearing on 1 December 2025. My decision was consistent with the principle of 'social rehabilitation' discussed by Vincent JA in DJK.[20] Such an approach has been taken by both Judges of this Court[21] and the Federal Court of Australia.[22]
6. The statement was marked for identification for this purpose. The prosecution now presses for the full tender of the statement and for it to be taken into account for the purpose of sentencing. It is therefore necessary to determine the question of the statement's admissibility.
7. It is not well understood in the community that occupational health and safety offences are risk-based and not outcome-based. This confusion may arise because the practice of the prosecuting authorities of commencing such cases in response to workplace accidents that have caused someone to be injured or killed. This is such a case. Although the deficiencies in Amicus's systems and the consequential risks to health and safety were present well before the date of Jo's death, it is the date of her death that is identified in the indictment as the date upon which Amicus breached its statutory duty.
8. The tragedy that precipitated the prosecution is understandably seen by all of those involved, and especially the family members of Jo, as part of the prosecution.
9. Where a company pleads guilty to an occupational health and safety offence in such a situation, the sentencing judge must apply conventional sentencing principles when determining the appropriate sentence to impose. These principles are prescribed in Victoria by the Sentencing Act. That Act identifies both the purposes for which a sentence may be imposed and the matters to which a court must have regard in determining the appropriate sentence.[23]
10. One such matter to which the court 'must have regard' as part of determining the appropriate sentence to impose is 'the impact of the offence on any victim'.[24]
11. The practical difficulties that this may cause in a case such as the present were examined in some detail by the Court of Appeal in the case of DPP v Vibro-Pile (Aust).[25] The court noted the 'complexity of sentencing for OHS offences' in circumstances where the question of whether a safety breach caused injury or death is 'irrelevant to criminal liability' and therefore has no bearing on the assessment of the objective gravity of the offence but remains relevant for sentencing purposes as part of the assessment of victim impact.[26]

1. It is to be recalled that the prosecution case was one of omission. It contended that Amicus breached section 23 of the Act by failing to take measures to ensure Jo was regularly and directly observed between the hours of 12.00 am and 6.00 am. In summary the measures that Amicus should have taken but did not take were:

(a) Having a documented requirement directed to its employees requiring that they directly observe Jo:

(i) by way of a close physical check at least every two hours; and

(ii) when the seizure alarm mat sounds.

1. To be satisfied that the death of Jo occurred 'as a direct result of the offence', I would need to be satisfied beyond reasonable doubt[27] that the implementation by Amicus of those measures would have prevented Jo's death. In other words, that her death would have been prevented by:

(a) a physical check at say 12.00 am, 2.00 am, 4.00 am and 6.00 am; or

(b) a physical check shortly after the alarm sounded at approximately 1.18 am.

1. Starting with the regular checks, as the evidence is that Jo likely passed away at 1.42 am, a check at 2.00 am would not have changed the outcome.
2. The question is more vexed in relation to the second alternative. The evidence is that staff (including Ms Knox) had already been trained to respond to any alarm (assuming that such training would even have been necessary). Therefore, it is not clear to me what a written requirement to do so would have changed in the circumstances of this case bearing in mind the gap in the evidence about why Ms Knox failed to respond to the alarm as discussed earlier.
3. Further, even assuming that the implementation of the measures would have made it more likely that Ms Knox would have responded to the alarm, the evidence before the court does not enable a finding to be made to the requisite standard that this would have saved Jo's life. There are too many unknown variables to make this finding.
4. It follows that as much as she has undoubtedly suffered as a result of Jo's death which occurred while Jo was in the care of Amicus, Ms Keogh is not a 'victim' of the offence before the court as that term is very narrowly defined in the SA.
5. I repeat my call made in an earlier decision for reform to this aspect of the law.[28] I note that the Sentencing Advisory Council has also recommended that the law be changed to achieve greater flexibility.[29]
6. For completeness, I note that the prosecution advanced an alternative argument in the event that I ruled to this effect. That argument was that Ms Keogh is impacted by the offence in the sense of the increased risk of harm to Jo that resulted from the breach of the duty.[30] I reject this argument. The statement made by Ms Keogh makes abundantly clear that it was Jo's passing that has led to her very understandable grief. It was not the mere increase of risk of harm.
7. This issue can be tested in this way. Let us say that the prosecution was brought in respect of the situation on 6 April 2021 instead of 6 May 2021. It still would have succeeded because the risk would have been present and the measures had not been implemented. But it seems somewhat artificial to expect that Ms Keogh would have made a victim impact statement.
8. For these reasons I have given no weight to the victim impact statement in the determination of the appropriate sentence to impose in this case.

1. The first and most important matter that mitigates sentence in this case are the pleas of guilty to the charges. By pleading guilty Amicus accepts its responsibility for the offending and exhibits some remorse for its criminal conduct. It was represented by senior officers in court and I accept that they are genuinely remorseful.
2. The second way in which the plea is relevant to sentencing is its utilitarian value. By avoiding what may well have been a lengthy trial, Amicus has spared the witnesses the anxiety and distress of reliving the events in question. It has also saved the community the prosecution and court resources that would have been necessary to run a trial.
3. For this, Amicus will receive a sizable discount on its sentence.
4. Amicus must also get some credit for coming before the court with no prior convictions and nothing subsequent.
5. Further, I accept that it was cooperative with the investigation and introduced remedial measures quite promptly. Of course the ease with which those changes were implemented begs the question of why the changes were not made earlier instead of waiting until a disaster occurred. Any audit of Amicus' systems could be expected to have identified the deficiencies that have come to light in this case.
6. Finally I note that Amicus is a not for profit organisation providing caring services. It has operated for many years in the Bendigo area.
7. The court received some limited information about Amicus' financial position.[31] It was in the form of a table setting out the company's financial operating surplus or deficit for the financial years 2021 - September 2025. The document reveals that the company's financial position has improved in each of the past 5 years and for the financial year to September 2025 it has an operating surplus of $16,752.
8. As Mr Young submitted, this evidence is of limited assistance to the court as the letter records that 'a significant proportion of our cash reserves are subject to current and non-current liabilities' and the court was not provided with any information about those matters.
9. With this caveat, I have taken into account Amicus' financial position as I am required to do by section 52 of the Sentencing Act.
10. In factoring these various subjective matters into the sentencing synthesis, I am cognizant of the authorities which stipulate that they are to be given less weight than would ordinarily be the case as the primary sentencing consideration in sentencing under the Act is general deterrence.[32]

1. A sentencing court must have regard to 'current sentencing practices'.[33] This is to promote consistency in sentencing. However, what is required is not numerical consistency but the consistent application of sentencing principle.[34]
2. The parties helpfully provided the court with a number of decisions to assist it in this regard.[35] I have read each of the decisions. While they have been helpful, each case is different and must be sentenced on its own facts and circumstances.

1. It has been stated by the Court of Appeal on more than one occasion that employers are required by the Act to take an active, imaginative and flexible approach to the safety of those who may be affected by their undertakings.[36] An employer must identify risks to health and safety and take steps to obviate those risks.[37] Employers must not wait until disaster strikes before addressing deficiencies in their safety systems.
2. The Court of Appeal has also stated that fines in OHS cases must 'draw attention to the importance of workplace safety, and send a message to employers that failure to eliminate or mitigate safety risks will attract significant punishment'.[38] This is what courts mean when they speak of general deterrence.
3. The need for general deterrence in this industry is underscored by a recent case brought before the Federal Court of Australia by the Commissioner of the NDIS Quality and Safeguards Commission which bears some striking similarities to this case.
4. In Commissioner of the NDIS Quality and Safeguard Commission v Aurora Community Care Pty Ltd (in liq) (No 2),[39] an NDIS participant was, like Jo, receiving in-home care at a supported independent living residence. Mr Gupta, who had various disabilities including an intellectual disability, was required to receive two to one care, 24 hours a day, 7 days per week. He had on previous occasions attempted to leave the residence.
5. On 17 March 2023, at 1.45 am Mr Gupta died after being struck by a car after leaving the residence. One of his support workers had fallen asleep and the other heard him open the back door but did not investigate. A total effective civil penalty of $2.2 million was imposed on the care provider in respect of a number of breaches of section 73V of the NDIS Act.[40]
6. That case and the present one highlight the great risks that are inherent in a system of care for disabled NDIS participants with a single point of failure (in the present case) and two points of failure (in the Aurora case). It is incumbent on companies who are funded to provide care in such circumstances to ensure that their safety systems incorporate everything that is reasonably practicable to ensure the safety of the highly vulnerable people in their care.
7. The principal sentencing considerations in this case are general deterrence and denunciation. I accept the submission by Mr Stafford that specific deterrence has less work to do in light of the company's good record and the appropriate response it has made to the tragedy.

1. As noted above, the principal sentencing consideration in a case such as the present is general deterrence. Ordinarily, courts are limited in what they can do to promote the awareness of sentencing decisions in the community that is necessary to promote general deterrence. As the Court of Appeal has stated on more than one occasion, this is a task for government.[41]
2. Sentencing in workplace safety cases is different. Courts can, and in my view, in appropriate cases should play an active role in ensuring that the results of cases are generally known to promote general deterrence by requiring offenders themselves to publicise the outcomes. They can do this by making an adverse publicity order (APO). In a recent report by the Sentencing Advisory Council, a recommendation was made in relation to APOs.[42]
3. The Maxwell report into the predecessor statute to the Act concluded that, '...if penalties for health and safety offences are to achieve the desired degree of general deterrence, it is essential that they be publicised widely'.[43] Maxwell considered that there was a 'strong case' for giving courts the power to order an offender to publicise the offence and the punishment 'as part of the penalty for the offence'. Maxwell therefore recommended that the revised Act contain such a provision. That is the background to the enactment of section 135 of the Act.
4. For reasons that are unclear, section 135 of the Act has been little used over the last 20 years.[44] It confers a broad power on the court to order an offender to publicise, in the way specified, 'the offence, its consequences, the penalty imposed and any other related matter'.[45] It also empowers a sentencing judge to order the offender to notify a specified person or class of persons about the same matters. Both powers a re relevant to the disposition of this case.
5. In this case, the prosecutor did not seek an APO; however, I have decided to make such an order on my own initiative having indicated that I would do so at the hearing of the plea.[46]
6. At the hearing of the plea, neither party opposed the making of such an order and in fact the parties co-operated in an attempt to agree the wording of the order that the Court makes. Ultimately, they were unable to agree on all aspects of the wording of the order.
7. I have ordered that Amicus publicise the outcome of the case on its website. I have also ordered it to notify the Commissioner of the NDIS Quality and Safeguard Commission. As the dedicated regulator of the NDIS[47] it is important that that office is aware of the case to inform its important work.

1. Taking into account the maximum penalty, my assessment of the objective gravity of the offence, and all other relevant considerations including the matters of mitigation, I order that:

(a) On Charge 1, Amicus is convicted and fined $350,000; and

(b) On Charge 2, Amicus is convicted and fined $20,000.

1. The total effective fine is $370,000.
2. I further order pursuant to section 135 of the Act that Amicus:

(a) Publicise in a prominent manner on its website a notice with the contents specified in the schedule to these reasons; and

(b) Notify Ms Marylin Keogh and Ms Louise Glanville, the Commissioner of the NDIS Quality and Safeguard Commission by sending each of them a copy of the notice.

1. The actions specified in paragraph [109] are to be completed by no later than 15 January 2026 and Amicus is to inform the Victorian Workcover Authority within 7 days of their completion.
2. Finally, pursuant to section 6AAA of the Sentencing Act, had Amicus pleaded not guilty, the fine on charge 1 would have been $500,000 and on charge 2, $25,000.

On 19 December 2025 the County Court of Victoria ordered that this notice be published on the web-site of Amicus Community Services Ltd

On 6 May 2021, Joanne 'Jo' DWYER (the deceased) was in the care of Amicus Community Services Ltd, a provider of disability services. The deceased had several disabilities, including:

• Albrights Hereditary Osteodystrophy Syndrome;
• Refractory epilepsy-Lennox Gestalt Syndrome;
• Intellectual disability moderate to severe; and
• autism with high sensory modulation disorder and profound communication disability with aphasia and perseveration.

Because of her epilepsy, the deceased experienced frequent seizures.

The deceased received full-time supported independent living services from Amicus and had so for approximately eight years. One of the services she received was 'active overnight monitoring'.

At 1.18am on 6 May 2021, the deceased suffered a seizure and fell out of bed. She died at 1.42am. Her epi-mat sounded loudly for 30 seconds. No visual check was made of the deceased until 9.06am. The system in place governing how and when a supported independent living worker was to provide 'active overnight monitoring' for the deceased was not as safe as reasonably practicable.

On 19 September 2023, Amicus was charged with two offences against the Occupational Health and Safety Act 2004. The first charge alleged that if the deceased experienced a seizure there was a risk to the deceased of death or serious injury as a result of obstructed airways, coming into contact with nearby hazards, hypoxia or uncontrolled seizures leading to death.

In order to control that risk it was charged that Amicus should have ensured that the deceased was regularly and directly observed between the hours of 12am and 6am by setting monitoring requirements in accordance with the Amicus Community Support Worker Manual being:

• requiring employees to conduct a close physical check of the deceased, by attending at the deceased's bedside at least every two hours (and when the seizure alarm mat sounds) and visually observing the deceased over a period of 1-2 minutes to ensure the deceased's colour can be reliably observed and that her breathing (rise of chest, sound of breath) can be reliably detected;
• providing employees with information, instruction and training as to directly observing the deceased at least every 2 hours by attending her bedside;
• enforcing the system the system with an adequate checklist for observations made and when those observations were made; and
• employees being required to sign off that they have read and understood the monitoring requirements prior to commencing their first unsupervised active overnight shift.

The second charge alleged that Amicus failed, without reasonable excuse, to notify the Victorian WorkCover Authority (VWA) immediately after becoming aware that an incident had occurred at a workplace under its management and control, being the death of their client.

On 6 May 2021, Amicus notified Victoria Police of the incident. On 7 May 2021, Amicus notified the NDIS Quality and Safeguards Commission of the incident. On 21 January 2022, following contact by investigators for the VWA, Amicus notified the VWA of the incident.

On 19 December 2025, the County Court of Victoria convicted and fined Amicus $370,000 and ordered it to publicise the offence and penalty imposed in the form of this notice.

[2] Occupational Health and Safety Act 2004 (Vic) s 38(1) ('OHS Act').

[3] Indictment P12012180, Charge 1, Particular 4.

[4] [2015] VSCA 266; (2015) 47 VR 660.

[5] Such as dangerous driving causing death (s 319(1)) and dangerous driving causing serious injury (s 319(1A)).

[6] DPP v Amcor Packaging Australia Pty Ltd [2005] VSCA 219, [35]; see also Dotmar EPP Pty Ltd v The Queen [2015] VSCA 241, [22]-[23]; DPP v Coates Hire Operations Pty Ltd [2012] VSCA 131; (2012) 36 VR 361, [68].

[7] DPP (Vic) v Heavy Mechanics [2023] VSCA 69 at [64]; see also Saunders Civibuild Pty Ltd v Safework NSW [2023] NSWCCA 261 at [168].

[8] National Disability Insurance Scheme Act 2013 (Cth) s 28.

[10] See, for example, Saunders Civibuild Pty Ltd v Safework NSW [2023] NSWCCA 261 at [274].

[11] Exhibit P1 (n 1) 7-8, [33]-[34].

[12] Defence Outline of Plea Submissions undated, 5 [19] (Defence Submissions).

[15] The Queen v Commercial Industrial Construction Group Pty Ltd [2006] VSCA 181.

[17] Prosecution Submissions on Sentence dated 27 November 2025, 4 [16].

[18] Defence Submissions (n 12) 9 [34].

[20] DPP (Vic) v DJK [2003] VSCA 109, 7-9 [17]-[18].

[21] See DPP (Vic) v Max Scaff Pty Ltd [2025] VCC 315 at [34] (Judge O'Connell); DPP v The Crown in Right of the State of Victoria [2024] VCC 810at [50] (Judge Quin).

[22] Comcare v John Holland Pty Ltd [2009] FCA 1196 (Collier J); Comcare v Commonwealth of Australia [2009] FCA 700 (North J).

[23] OHS Act (n 2) ss 5(1) and (2) respectively.

[24] Sentencing Act 1991 (Vic) ss 5(2)(daa) and (db) ('Sentencing Act').

[25] [2016] VSCA 55; (2016) 49 VR 676, 55-6 [195]-[200] ('Vibro-Pile').

[27] Arthurs Seat Scenic Chairlift Pty Ltd v The Queen [2010] VSCA 269, 6 [25].

[28] DPP (Vic) v Yarra Valley Park Lane Holiday Park Pty Ltd [2024] VCC 1863, 24-5 [111]-[114].

[29] Sentencing Advisory Council, Sentencing Occupational Health and Safety offences in Victoria: Report and Recommendations (Report, February 2025), Recommendation 1 (SAC Report).

[30] Prosecution Submissions (n 17) 10-1 [50]-[56].

[31] Letter dated 28 November 2025 from Stacie Wright, General Manager - Business Services to Ella Thomas, Minter Ellison.

[32] DPP (Vic) v Heavy Mechanics Pty Ltd [2023] VSCA 69, 23 [85].

[34] Wong v R [2001] HCA 64; (2001) 207 CLR 584; DPP (Vic) v Dalgleish (a pseudonym) [2017] HCA 41.

[35] The court was referred to DPP (Vic) v Mackillop Family Services Ltd [2021] VCC 1810; DPP (Vic) v Oxymed Australia Pty Ltd (CCV, 9/8/21); and DPP (Vic) v Melbourne Health [2021] VCC 407.

[36] R v Australian Char Pty Ltd [1999] 3 VR 834 at 847; DPP (Vic) v Amcor Packaging Australia Pty Ltd [2005] VSCA 219; (2005) 11 VR 557 at 565; R v Commercial Industrial Construction Group [2006] VSCA 181; (2006) 14 VR 321 at 332; DPP (Vic) v JCS Fabrications Pty Ltd [2019] VSCA 50 at [51].

[37] Kirk v Industrial Relations Commission (NSW) [2010] HCA 1, 5 [11].

[39] [2025] FCA 1237.

[40] Section 73V of the NDIS Act obliges an 'NDIS provider' to comply with the 'NDIS Code of Conduct'.

[41] DPP (Vic) v Russell [2014] VSCA 308; (2014) 44 VR 471 at [5]-6]; DPP (Cth) v Brown [2017] VSCA 162; (2017) 268 A Crim R 309 at [9]- [10].

[43] Christopher Maxwell QC, Occupational Health and Safety Act Review (Report, 2004), [1845].

[44] This is in contrast to the position under equivalent statutes interstate - see, e.g., SafeWork NSW v KD & JT Westbrook Pty Ltd [2018] NSWDC 255 & [2019] NSWDC 1 at [63]; Bradley & Joanne Finnigan Pty Ltd v WorkSafe ACT (Supreme Court of the ACT, Elkaim J, 6 June 2016). See also Sentencing Advisory Council, Sentencing Occupational Health and Safety offences in Victoria: Report and Recommendations (Report, February 2025), 68-73.

[47] The Commission is established by s 181A of the NDIS Act and the office of the Commissioner is established by s 181C of the same Act.