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[2021] VCC 1810
General information, not legal advice.
County Court of Victoria
2021-11-12
Original judgment source is linked above.
1 MacKillop Family Services Limited has pleaded guilty to one charge of failing to ensure that persons other than employees were not exposed to risks contrary to s 23(1) of the Occupational Health and Safety Act 2004, which carries a maximum penalty of 9000 penalty units or $1,450,710.
2 MacKillop Family Services Limited has no prior Criminal Record.
3 A prosecution opening was tendered on the plea and may be summarised as follows:
4 MacKillop Family Services Limited (ACN 078 299 288) ('MacKillop') operated a number of residential care houses for the Department of Health and Human Services ('DHHS'). Children and young persons who are no longer able to live with their families for various reasons including family violence, drug and alcohol abuse, mental health issues or family breakdowns can be placed in residential care. When a child or young person is referred to MacKillop by DHHS, all crucial information in the possession of DHHS about that child or young person is provided to MacKillop.
5 MacKillop is, and was at all material times, an employer within the meaning of s 5 of the Occupational Health and Safety Act 2004 ('OHSA').
6 At the relevant time, MacKillop maintained a workplace in the Geelong region which was a residential care house ('the second facility'). Employees would generally work one of three shifts, being 7.30 am to 3.30 pm, 3.30 pm to 10.30 pm and 10.30 pm to 7.30 am. The morning and afternoon shifts would usually have two employees working at the same time, whereas the overnight shift would usually have a single employee.
7 The deceased was born in May 2004. He was placed in out of home care on 5 June 2018, originally at a separate residential unit also in the Geelong region ('the first facility'). The deceased had a history of major depressive disorder, sleep difficulties, anxiety and substance use.
8 Included in the deceased's case file, available to MacKillop staff, was an 'Individual Behaviour Support Plan and Safety Response' dated 8 June 2018. The behavioural plan noted he was prescribed anti-depressant medication and that he was currently at risk of self-harm. Under 'safety concerns' it was noted that 'it is important [the deceased] is supervised and does not have access to any means of self-harm, including sharp objects, needles, knives, ropes or any medication'. Line of sight was also recommended to be maintained.
9 Following a disclosure made on 2 July 2018 that the deceased had started a sexual relationship with another resident at the first facility, arrangements were made to transfer him to another placement immediately. The last remaining vacancy for out of home care in the area was in the second facility. It was noted that this facility was 'far from ideal' for the deceased as the other residents at the facility were 'two of our highest risk young people in placement'. Ultimately, the deceased was placed at the second facility.
10 The deceased was distressed about leaving the first facility and moving to the second facility. He had been crying and had taken half an hour to leave his room.
11 On 3 July 2018, Fiona Brown, a senior clinical psychologist from the Child and Adolescent Mental Health Service ('CAMHS') emailed the deceased's DHHS child protection worker, requesting a Care Team Meeting be scheduled. The purpose of the meeting was to discuss the deceased's 'low mood and lack of motivation'. A Care Team meeting was ultimately held on 5 July 2018, at which it was noted that the deceased 'has been reserved and hasn't left the unit very often' and that he appeared 'somewhat withdrawn and spends most of the day in bed'.
12 After being placed at the second facility, various MacKillop staff made the following observations about the deceased:
(a) On 10 July, the deceased told Employee A that he was feeling 'a bit flat'. Employee A formed the opinion the deceased 'seemed a bit down';
(b) On 10 July, a staff checklist was accompanied by a note to the effect that '[the deceased] disclosing that he is very bored, has no reason to wake up, get out of bed, feels very disconnected';
(c) On 10 July, Employee B accompanied the deceased to his medical appointment with his General Practitioner. Employee B was present when the deceased discussed no longer taking antidepressants. The deceased said he felt numb when taking them. The General Practitioner asked the deceased if feeling numb was preferable to suicidal thoughts, to which the deceased said 'yeah I guess'. Following this appointment, the deceased's doctor left a phone message for the Geelong CAMHS to review their contact with the deceased;
(d) On 11 July, Employee C noted that the deceased was 'a bit flat', and that his phone had been taken from him by another resident;
(e) Employee D noted the deceased's behavioural management plan recorded his mental health issues, including that he was previously known to self-harm. Furthermore, the plan noted the deceased had stopped taking anti-depressant medication; and
(f) Employee E was aware the deceased did not want to move to the second facility. She was further aware he had issues with illegal drugs and that he had been moved to the second facility due to a sexual relationship with another resident at the first facility, and that the girl with whom the deceased was having the relationship was suicidal.
13 On 11 July 2018, Employee A worked the overnight shift. He was advised by the afternoon shift workers that the deceased was in 'good spirits', was 'in a good headspace' and 'everything appeared normal'. Employee A did not see the deceased during his shift. Employee E had a handover with Employee A when she started work at 7.30 am on 12 July. She knocked on the deceased's door at 12.10 pm, 12.30 pm and 2.30 pm but thought he was sleeping. Employee E finished work at 3.30 pm without having seen the deceased.
14 Employee B worked the afternoon shift. Employee C had a handover with Employee B at 3.30 pm in which Employee B was told the deceased was asleep in his room. Sometime after 3.45 pm Employee B knocked on the deceased's door. After receiving no answer Employee B used a key to gain access to the room and saw the deceased hanging from the door handle of the bathroom door with a belt around his neck. Employee B called 000 but formed the view that CPR would be futile as the deceased was cold.
15 MacKillop did not participate in a taped Record of Interview.
16 After the incident, MacKillop instituted a policy whereby a welfare check must be conducted on all clients prior to the commencement of each shift. Staff were directed to physically sight all young people in the house at shift handover and report the checks in the day book. This was reinforced to staff in an email sent on 15 March 2019. MacKillop also directed staff to regularly check residents every two hours and provided further training about self-harming behaviours and suicide awareness.
17 In cases where death or serious injury has resulted from a relevant breach of the OHSA, the Court of Appeal in DPP v Frewstal Pty Ltd[1] summarised the guiding principles in sentencing such matters as follows:
18 Ms Tittensor who appeared with Ms Brown on behalf of the Director of Public Prosecutions, submitted that with regard to the Frewstal principles, the Court should take into account that MacKillop, by the very nature of their undertaking, are dealing with very vulnerable young people, often with high mental health needs. Further, that the accused's state of knowledge concerning the particular risk was high.
19 In this particular instance, the deceased had a history of mental health disorders and it was noted on his file a month earlier that he should not have access to any means of self-harm and that line of sight should be maintained. Relevantly, the deceased had ceased taking his antidepressant medication in the days prior to the incident. Further, he had recently attempted suicide in April 2018. Cognizant of this information, on the day of the incident, the deceased was not sighted by any employee of MacKillop for 18 hours.
20 Mr Mandy, who appeared on behalf of MacKillop, submitted that in assessing the gravity of the offending it should be noted that the workplace in this instance is dynamic and therefore the system of work necessarily needed to be tailored to individual residents and their needs. It was further submitted that the decision to not open the door of the deceased's room was not made neglectfully.
21 While I accept that MacKillop is looking after very vulnerable young people which creates a challenge, it is clear that there was sufficient up to date information about the deceased that should have prompted a more timely response by staff in relation to checking his welfare. As the particulars of the charge state: the risk of death or serious injury was the risk of self harm or risk taking behaviour. Here the consequence was tragic and may not have been able to be prevented, however, to not check on a resident for 18 hours, in my view in all the circumstances does represent a relatively serious departure from the duty MacKillop had in supervising the vulnerable young people in its care. As was discussed at the plea, a resident may be at risk because of their particular vulnerabilities - as was the case here - or there may be other medical or physical needs of a resident that may unexpectedly arise and require attention which may go unnoticed without timely and regular checks.
22 While it is acknowledged that the offence is risk based and not outcome based, pursuant to s 5(2)(db) of the Sentencing Act 1991 a sentencing court is required to take into account any injury, loss or damage resulting directly from the offence.[2]
23 A victim impact statement was prepared by, the deceased's mother. The deceased's mother writes of the daily reminders of her son and the sadness and pain of not being able to share things with him. The deceased's mother questions why her son was left alone for so long and why visual checks were not made on him more often. She believes that more carers are needed at residential homes. At the conclusion of this case, the deceased's mother hopes to find closure and move forward, remembering her son's life.
24 I wish to direct some comments to the family of the deceased. As noted, this legislation is about reducing or eliminating risks to health and safety. MacKillop is not charged with causing the death of the deceased. The sentence I must impose can in no way be a measure of the worth of the deceased's life. Rather, the sentence I must impose is a reflection of a large number of factors which judges are required by law to take into account, only one of which is the impact on victims.
25 MacKillop is a not for profit, charity organisation which operates 42 residential units in Victoria housing approximately 108 residents.
26 It was submitted that MacKillop is generally regarded as an exemplary service provider, with no Provisional Improvement Notices having been issued by WorkSafe in recent years.
27 Since the death of the deceased, MacKillop has implemented a number of changes to promote safety and wellbeing for residents and employees and address the gaps in its systems of work. MacKillop has worked to adopt the recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse. MacKillop has conducted research and reviews. Further, the organisation has implemented a suite of policies and programs focused on improving the health and safety of young people in its care as well as employees and the wider community. These changes have been made in accordance with The Sanctuary Model which is a blueprint for organisational change where concepts such as non-violence, emotional intelligence, social responsibility and growth are at the forefront.
28 At the plea I was told that since the incident, in addition to the steps outlined above, MacKillop introduced further measures including increased training for the induction of staff, employing a psychiatrist and employing 10 additional mental health clinicians.
29 A letter from Dr Lisa Griffiths, Chair of the Centre of Excellence in Child and Family Welfare, of which MacKillop are a full member, was tendered on the plea. Dr Griffiths states that MacKillop is a leader in the residential and therapeutic care sector that has a commitment to continuous improvement. Dr Griffiths references the 'Outcomes 100, Residential Care Case Reviews' report. This report details how MacKillop has listened to the voices of young people and used critical thinking to determine how to 'do better' within residential care homes. Dr Griffiths speaks highly of MacKillop's research in partnership with WorkSafe and their three to four star ratings received in the Department's audits.
30 Also tendered on the plea was a letter from Professor Cathy Humphreys of the University of Melbourne who conducted an independent review of MacKillop's work with vulnerable young people. Professor Humphreys states that she regards MacKillop highly in terms of their culture of best practice and commitment to the compassionate and skilled care of children. In particular, Professor Humphreys highlights MacKillop's leadership status in the sector in relation to the prevention of sexual exploitation of young people in residential care.
31 A letter from Sergeant Dan Willsmore was tendered on the plea. Sergeant Willsmore was the Officer in Charge at the Geelong High Risk Youth Unit which worked alongside MacKillop. Sergeant Willsmore writes that in this position he has come to understand MacKillop's crucial role in the care of high risk youth. He states that without their influence, vulnerable young people in the region would be at a greater danger of being exploited by adults.
32 Mr Mandy who appeared on behalf of MacKillop at the plea, outlined a number of matters in mitigation. First and foremost is the plea of guilty.
33 The matter resolved on 24 August this year after a summary jurisdiction application in the Magistrates' Court was refused. The matter proceeded to this Court by way of straight hand up brief.
34 The plea has considerable utilitarian value as it has spared the resources and time of a jury trial and has avoided the need for employees and other witnesses to give evidence and relive the trauma of the incident. Trials of this nature inevitably involve a degree of complexity and are generally not short trials. Therefore the organisation, by its plea of guilty has demonstrated a willingness to facilitate the course of justice which must be taken into account in its favour.
35 As the plea has been entered in circumstances where the pandemic has created a substantial backlog of cases in the criminal justice system, the plea carries further weight which must be reflected in an additional amelioration in sentence.[3]
36 It was also submitted that MacKillop's plea and conduct after the offending demonstrate remorse and is consistent with the organisation's attitude to accept responsibility for deficiencies and improve systems of work. I accept that submission.
37 Ms Tittensor accepted that MacKillop, as a not for profit organisation that provides a valuable service to the community, in the circumstances it may be considered to be a good corporate citizen. Nonetheless in cases involving breaches of the OHSA, general deterrence is the predominant sentencing consideration. As noted in DPP v Vibro-Pile (Aust) Pty Ltd:
The sentences imposed need to draw attention to the importance of workplace safety, and to send a message to employers that failure to eliminate or mitigate risks will attract significant punishment.[4]
38 Further, in cases involving a breach of the OHSA, subjective factors such as a plea of guilty and matters in mitigation would not be permitted to produce a sentence which fails to adequately reflect the seriousness of the offence.[5]
39 As to specific deterrence, I take into account that the organisation comes before the court with no prior convictions and has responded appropriately to the incident by implementing a number of safety measures. It is clear the organisation is genuinely committed to fostering safer work practices to mitigate future exposures to risk. As such in my view specific deterrence is able to be given limited weight in this instance.
40 Mr Mandy submitted that in light of all the circumstances including MacKillop's status as a charity organisation and the remedial steps taken, a modest fine should be imposed. Further, it was submitted that a conviction ought not be recorded.
41 Ms Tittensor submitted that the case of DPP v Melbourne Health[6] (Melbourne Health) provides a relevant comparator in terms of the gravity of the breach. Melbourne Health involved an incident where a resident in an aged persons mental health unit suicided by using a plastic sheet to hang himself. Mr Mandy submitted that the culpability of the accused in that case was far greater as the deceased had recently attempted suicide and was required to have 15 minute observations. The sentencing judge in that case found that the likelihood of an event such as what occurred, was high. Melbourne Health, like MacKillop had no prior history, was a good corporate citizen and provided a valuable service to the community. I have taken this case into account however, while comparative cases may be of assistance, each case must turn on its own facts. I am of the view however that in all the circumstances, including the gravity of the breach, a conviction should be recorded in this instance.
42 On Charge 1, failing to ensure that persons other than employees were not exposed to risks, MacKillop Family Services Limited is convicted and fined $220,000.
43 Pursuant to s 6AAA of the Sentencing Act 1991, if not for the organisation's plea of guilty, I would have convicted and fined the organisation $350,000.
[1] [2015] VSCA 266; (2015) 47 VR 660 at [127] per Priest and Kaye JJA.
[2] DPP v Vibro-Pile (Aust) Pty Ltd [2016] VSCA 55; (2016) 49 VR 676 at [195].
[3] Worboyes v The Queen [2021] VSCA 169 at [39].
[4] DPP v Vibro-Pile (Aust) Pty Ltd [2016] VSCA 55; (2016) 49 VR 676 at [233].
[5] DPP v Amcor Packaging Australia [2005] VSCA 219; (2005) 11 VR 557 at [35].
DPP
MacKillop [2021] VCC 1810
(2005) 11 VR 557
(2015) 47 VR 660
(2016) 49 VR 676