DPP v St Basil's [2026] VCC 225

(a) identifying COVID-19;

(b) routes of transmission;

(c) the persons at risk from COVID-19;

(d) the stocking and use of personal protective equipment (PPE); and

(e) the responsibility for ensuring that staff are trained and competent in all aspects of outbreak management prior to an outbreak, including the proper use of PPE, donning and doffing procedures and the need for refresher training for existing staff.

1. On 16 March 2020, the Victorian Government declared a state of emergency to combat the COVID-19 pandemic.

1. On 4 March 2020, external medical practitioners provided COVID-19 training to some of St Basil's staff, including in relation to the use of PPE.
2. On 15 March 2020, external medical practitioners provided a second COVID-19 training session to some of St Basil's staff, including in relation to the use of PPE.
3. On 23 April 2020, external medical practitioners provided a third COVID-19 training session to some of St Basil's staff, including in relation to the use of PPE.
4. On 5 May 2020, in response to improvements identified by the Continuous Improvement Committee (CIC), Vicky Kos, St Basil's Director of Nursing, engaged Marg Foulsum, a health and aged care management consultant from CM Consultancy, to update St Basil's infectious control plans and prepare a COVID-19 folder.
5. On 9 May 2020, external medical practitioners provided a fourth COVID-19 training session to some of St Basil's staff, including in relation to the use of PPE.
6. On 11 May 2020, Ms Foulsum told Ms Kos that St Basil's infection control plans were up to date.
7. On 28 May 2020, Ms Foulsum provided St Basil's with a Pandemic Resources Folder, which required infection control training, including in PPE, at shift handovers. Ms Foulsum also collated a shorter Outbreak management booklet, which addressed appropriate use of PPE.
8. On 29 May 2020, Ms Kos placed the Pandemic Resources Folder in the main staff room so St Basil's staff could access the folder.
9. On 1 June 2020, an Infection Control Policy (Outbreak Management Plan) was put in the home's main office so staff could access the document.
10. On 14 June 2020, external medical practitioners provided a fifth COVID-19 training session to some of St Basil's staff, including in relation to the use of PPE.

1. Prior to the outbreak, St Basil's had a procedure for donning, doffing and using PPE. Its procedure was outlined in several documents, including:

(a) the COVID-19 Pandemic Resources Folder;

(b) Infection Control Policy (Outbreak Management Plan);

(c) Outbreak Management booklet;

(d) Nursing Home Handover Folder;

(e) Staff Memos; and

(f) Shift handover notes.

(a) required staff to wear PPE where there was a suspected or confirmed case of COVID-19;

(b) provided staff with a demonstration as to the sequence and manner of donning and doffing PPE; and

(c) verified staff as competent in donning and doffing PPE.

1. Between March and July 2020, St Basil's provided information, instruction and training to some of its staff in relation to, inter alia, the use of PPE. The training was delivered at sessions run by external doctors, at shift handovers and in practical sessions at the commencement of shifts. Specifically, St Basil's stated that:

(a) between March and July 2020, infection control training was provided at handovers;

(b) on 4 and 15 March, 23 April, 9 May and 14 June 2020, training was provided by the external doctors Drs Nilantha Jayarathna and Arunan Devapriya; and

(c) between 9 and 21 July 2020, training was provided at the commencement of shifts on a daily basis.

1. Melanie Lange, Patricia Rengifo-Garcia, Dafinka Belevska, Gerarda Zaharogiannis and Rabina Thapa did not attend a session with the doctors or handover training relating to the use of PPE.
2. As a result of St Basil's failure to provide the necessary information, instruction and training in relation to the use of PPE, not all of its staff understood the sequence and manner of donning and doffing to control the risk of transmissions of COVID-19.
3. Professor Shaban, the Clinical Chair, Infection Prevention and Diseases Control at the University of Sydney provided an expert opinion in respect to the outbreak.
4. Professor Shaban opines as follows:

(a) all staff that work within an aged care facility should be trained, certified and able to demonstrate the same knowledge and competency in the use and disposal of PPE;

(b) PPE training and assessment necessarily requires practical components. Training should include a physical demonstration of all PPE protocols and should be adapted such that they take into consideration facility-specific risks, contexts, infrastructure and resources. Staff competency must also be assessed practically. All staff should be able to perform PPE donning, doffing and disposal procedures with all appropriate items, in the correct order and the correct situation;

(c) since COVID-19 is a novel disease, adequate preparation should include the dedicated and timely re-education, retraining and reassessment of staff competency in infection control protocols, including all PPE-related interventions; and

(d) the information and training provided by St Basil's to its workers with respect to the practice of donning, doffing and use of PPE, and training workers in the donning, doffing and use of PPE did not meet, and fell short of, the standards required for the management of SARS-CoV-2 and COVID-19.

1. On 9 July 2020, Ms Kos was informed that a personal care assistant at St Basil's, Ms Shrestha, had tested positive for COVID-19. Ms Kos contacted the Commonwealth Department of Health and the Victorian Government Coronavirus Hotline. She was advised to contact the communicable diseases section of the DHHS, which she did.
2. At approximately 1:00pm, Ms Kos called a meeting at which she announced a positive COVID-19 case and that any concerned staff should get tested. The meeting did not include all St Basil's staff, and not all those working at the time. St Basil's PCA Patricia Rengifo-Garcia was at work but unaware of the meeting.
3. At around 3 pm, St Basil's PCA Gerarda Zaharogiannis commenced his shift. That evening, he worked in the hostel. Later that night, Violetta Simonovska, PCA, called Ms Velkoski and informed her there was an announcement at work that Ms Shrestha tested positive for COVID-19.
4. On 10 July 2020, Mr Mee and Mses. Velkoski and Rengifo-Garcia and St Basil's PCAs Dafinka Belevska, Sonya Spasoski, Rabina Thapa and Ilija Avramovski worked a shift at St Basil's.
5. Both Mses. Rengifo-Garcia and Belevska recall a notice on the noticeboard announcing a staff member had tested positive. On 11 July 2020, Mses. Rengifo-Garcia, Spasoski and Thapa worked shifts at St Basil's. Ms Rengifo-Garcia worked in the dementia unit.
6. On 12 July 2020, Mses. Rengifo-Garcia, Belevska and Thapa returned to work.
7. On 13 July 2020, Mses. Velkoski, Belevska and Avramovski and Bill Miltiadis worked a shift at St Basil's. Ms Velkoski recalls Ms Kos issued these directions:

(a) masks and gowns were to be worn in residents' rooms;

(b) masks were to be removed every four hours; and

(c) staff were not to move between different areas of the nursing home.

1. Similarly, Mr Miltiadis and Ms Avramovski recall attending a meeting at which Ms Kos informed those gathered there had been a positive COVID-19 case. Ms Kos told them to wear masks and how to don them, to replace their PPE every four hours, and not to walk between wards or areas in the workplace.
2. On 14 July 2020, Ms Belevska worked an afternoon shift in St Basil's hostel. She recalls being told to wear PPE and to change it after dealing with each resident.
3. On 15 July 2020, all St Basil's employees and residents were tested for COVID-19 by government health workers.
4. Ultimately, 45 staff members developed COVID-19.

1. The prosecution case is that St Basil's failed to provide and maintain for its employees a working environment that was at the relevant time, safe and without risks to health by failing to provide information, instruction and training as was necessary to enable them to perform their work in a way that was safe and without risks to health. As detailed in the particulars of the charge, the identified risk was the risk of contracting the SARS-CoV-2 virus, which could cause serious illness or death.
2. The safety measures that would have reduced the risk included providing employees with information instruction and training about appropriate PPE to be worn, the donning and doffing of such PPE, and what constituted a suspected or confirmed case of COVID-19 that would require the wearing of PPE. The indictment names five employees who were not provided with the necessary information, instruction and training.
3. To be clear, the prosecution of St Basil's relates to the failure to adequately inform, instruct and train its employees in relation to the use of PPE including the sequence of donning and doffing of PPE. While it is the case that many elderly residents of St Basil's contracted the SARS-CoV-2 virus and tragically, many passed away, this prosecution of St Basil's is limited to its failure to adequately train the named five employees.
4. In assessing the gravity of a breach under the OHSA, the Court of Appeal in DPP v Frewstal Pty Ltd[1] summarised the guiding principles in sentencing such matters including relevantly:

(a) that an accused is punished according to the gravity of the breach of duty owed under the OHSA, not according to the result or consequences of the breach;

(b) the gravity of the breach is measured by two factors: 1) the seriousness of the breach itself (that is, the extent to which the defendant has departed from its statutory duty); and 2) the extent of the risk of death or serious injury which might result from the breach; and

(c) that 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 (in particular, whether there is a risk of death or serious injury).

1. It was submitted on behalf of St Basil's that the offending falls towards the lower end of the range in that the extent of St Basil's departure from their statutory duty is slight and that the extent of the risk in this instance was low.
2. St Basil's submitted that the evidence reveals that the company was cognisant of the need to protect its staff and the residents from the risks associated with COVID-19, as detailed in extensive written submissions filed on the plea. For example, through the charged period St Basil's introduced additional training on the use of PPE and further education in relation to infection control and spot checks. Further, on 30 June 2020, Infection Prevention and Control Outreach Nurses attended the facility and found St Basil's to be appropriately prepared for the COVID-19 outbreaks, with appropriate infection and control practices.
3. In summary, it was submitted that St Basil's had appropriate systems in place and was taking active steps to ensure the staff and residents were protected from outbreaks of COVID-19. The prosecution accept that St Basil's had in place at the relevant time, a system of work that required staff to wear PPE where there was a suspected or confirmed case of COVID-19, and that St Basil's provided staff with training in relation to donning and doffing of PPE. The prosecution case however, is that such information, instruction and training was provided to all but five of its employees. In simple terms, even if there was in place a system that provided appropriate training in relation to the use of PPE, it was inadequate as some employees were not trained thereby placing other employees at risk of serious injury or death.
4. The prosecution submitted that the offending is serious, as St Basil's conduct involved a clear departure from acceptable safety standards, relying on the evidence of Professor Shaban that 'the risk of infection in circumstances where there is inappropriate or insufficient use of PPE within the hierarchy of control, is certain.'[2]
5. The prosecution submitted that in the circumstances St Basil's knew of the risk and the suitable available measures but failed to provide all of its employees with the necessary training prior to the outbreak. Further, that once it was known that an employee had tested positive, it did not ensure at that time, that all staff had received the appropriate and necessary training.
6. In my view St Basil's was well aware of the risks associate with a COVID-19 outbreak and the measures that would be required to maintain a safe working environment. I also accept that it had in place infection control practices. Nonetheless, as is well established, there is no benefit in having a system in place unless it is appropriately monitored and implemented. Here there were weaknesses in the system that led to five of its employees not receiving the adequate training required, giving rise to the identified risks. As noted in The Queen v Commercial Industrial Construction Group Pty Ltd:[3]

[T]he formal adoption of a satisfactory safety management system will not have the beneficial effects intended unless it is accompanied by the employer's active implementation of the system in the workplace. The employer's duty will not be discharged simply by creating a safe system of work. The obligation requires the employer to ensure "that procedures and instructions are actively and positively complied with by employees". Not only must employees be appropriately trained but there must be ongoing supervision and compliance audits, to ensure that the system is being applied in practice. Employee compliance with the safe system of work must be constantly monitored by the employer.

1. In my view, in all the circumstances, St Basil's departure from its duty in this instance represents a relatively serious breach.

1. St Basil's is a residential aged care facility in Fawkner, Victoria. It is a not-for-profit organisation, operating under the auspice of the Greek Orthodox Archdiocese of Australia. It is a registered charity, and all income it earns must be applied solely towards the promotion of the charitable purposes of the company. Its directors volunteer their time and are not paid directors fees.
2. St Basil's currently employs 100 staff and accommodates 77 residents.
3. At the time of the outbreak in July 2020, St Basil's was a fully paper based facility with limited digital infrastructure. It has since introduced digital monitoring and record keeping systems which has led to an improvement in governance, infection prevention and control and regulatory compliance. The company has also introduced Infection Prevention and Control Lead positions (IPC Lead) which require considerable training and accreditation. There are two IPC Lead positions, supervised by the Facility Manager. Further, the company has engaged an Education Assistant to assist staff to complete the required training.[4]
4. The new structure that has been developed and enhanced since the outbreak in 2020 has the purpose of ensuring that the failures identified in 2020 cannot occur under the current governance.
5. In 2022 the company achieved an 18 month accreditation from the Aged Care Quality and Safety Commission (ACQSC). In September 2023, ACQSC conducted a further review of St Basil's operations and granted a full three year reaccreditation with no risks identified.[5]

1. Mr O'Bryan, who appeared on behalf of St Basil's, outlined a number of matters to be taken into account in mitigation.
2. First and foremost is the plea of guilty. This matter has had a long investigative and procedural history. The offending occurred in 2020, and the company was charged some two years later. There were significant delays due to a lengthy coronial inquest, and the contested committal was not conducted until February 2024. The matter then had a number of administrative hearings in this court with a tentative trial date in May 2026. The trial was estimated to take four weeks. The matter came before me for a sentence indication hearing, with the indication being handed down on 2 December 2025. On 12 December 2025 St Basil's accepted the indication and the company was arraigned on 2 March 2026, pleading guilty.
3. The plea has considerable utilitarian value as it has spared the resources and time required for a trial. I therefore take the company's acceptance of responsibility and its willingness to facilitate the course of justice into account.
4. I take into account the delay in this matter. As noted above, this case has had a long procedural history resulting in a delay of approximately five years between the offending and the sentencing indication hearing, including a delay of two years between the offending and charges being laid. In my view the two limbs of the principle of delay can be given weight. First, delay of this magnitude has meant that the prolonged criminal process has been an ongoing stress and burden for the company and its employees. Secondly, the company has, in the intervening period, upgraded and improved its training and auditing systems and it has not been the subject of any further criticism or scrutiny.
5. It was submitted that the company has been subjected to a form of extra curial punishment. While many COVID-19 outbreaks occurred in numerous aged care facilities in Victoria, the outbreak at St Basil's became the focus of enormous public attention through the media. Further, it is the only residential aged care facility to be sentenced in respect of its response to the pandemic. In my view some weight can be given to the fact that the company has been exposed to a degree of public opprobrium.[6]

1. In cases involving breaches of the OHSA, general deterrence is the predominant sentencing consideration. As noted in DPP v Vibro-Pile (Aust) Pty Ltd: [7]

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.

2. As to specific deterrence, I take into account that the company comes before the court with no prior convictions and is otherwise a company of good character. It is registered as a 'public benefit institution' and it is a registered charity established specifically for the provision of aged care. As such all income it earns is applied towards the promotion of the charitable purposes of the company and its directors are volunteers. As outlined above, it has also taken considerable steps to improve its readiness for any future events or outbreaks, including continued PPE competency training to all staff together with structured audits and monitoring via digital monitoring and record keeping systems. In the circumstances in my view, specific deterrence need not be given weight in the circumstances.
3. It was submitted that a conviction should not be recorded. Mr O'Bryan pointed to the substantial efforts made by the company to protect its employees from the risk of COVID-19, the fact that it is a not-for-profit institution that was impacted financially and reputationally as a result of the outbreak, and that it comes before the court with no prior criminal history. While these are matters I take into account, I must also take into account the nature and seriousness of the offence. In my view the seriousness of the offending, together with the weight to be placed on general deterrence, warrants the recording of a conviction.
4. Finally, the prosecution and the defendant company each provided the court with comparable cases which I have taken into account. As is well settled, only limited assistance can be derived from comparative cases,[8] however while they can inform the instinctive synthesis,[9] each case must be assessed on its own unique circumstances.

1. In the circumstances St Basil's Homes for the Aged in Victoria is sentenced as follows:
2. On Charge 1, failing to provide and maintain for employees, so far as was reasonably practicable, a working environment that was safe and without risks to health, St Basil's Homes for the Aged in Victoria is convicted and fined $150,000.
3. Pursuant to s 6AAA of the Sentencing Act 1991, if not for the plea of guilty, I would have fined the company $250,000 with conviction.

[1] [2015] VSCA 266; (2015) 47 VR 660, [127], Priest and Kaye JJA.

[2] Prosecution submissions, [22], Expert Report, depositions p347.

[3] [2006] VSCA 181; (2006) 14 VR 321, [48].

[4] Statement of Lubo Zhang, 23 February 2026, St Basil's Facility manager.

[6] DPP v Pell [2019] VCC 260, [148].

[7] DPP v Vibro-Pile (Aust) Pty Ltd [2016] VSCA 55; (2016) 49 VR 676 at [233].

[8] DPP v Vibro-Pile (Aust) Pty Ltd [2016] VSCA 55; (2016) 49 VR 676, [222].

[9] DPP v Dalglish [2017] HCA 41; (2017) 262 CLR 428, [83]-[84].