DPP v The Crown in Right of the State of Victoria [2024] VCC 810

1. The maximum penalty for an offence under s 23 of the Act is 9,000 penalty units or approximately $1.5m.
2. In separate proceedings relating to the same incident at Belfast, Port Fairy Community Management Group ('The Group'), the operators of Belfast, have pleaded guilty to a single charge of breaching s23 of the Act. The particulars of the breach by them differ from that alleged and admitted by the Department.
3. To assess or appreciate the seriousness of the breach of the Occupational Health and Safety Act 2004, it is necessary to outline some of the key facts as agreed between the prosecution and the Department and contained in the prosecution opening on plea dated 15 April 2024 and filed in these proceedings.

1. On 21 May 2021, 28 Grade 2 students from the school attended Belfast as part of an excursion or camp activity.
2. In relation to planning the camp a meeting was held at the school to organise a camp for Year 2 students scheduled for 20 and 21 May. In preparation for the camp a risk register and itinerary for the camp was completed. The itinerary included a swim and play session to take place at Belfast. Permission slips were sent to parents of the Year 2 children.
3. On 18 and 19 March 2021, Skye Meinen, Cooper's mother completed the school's excursion paperwork. The documents included both a permission slip relating to the camp which included reference to the excursion at Belfast and a Confidential Medical Information Form for Excursions. In this latter form, Ms Meinen ticked a box indicating that Cooper was a 'beginner swimmer with little or no experience including in shallow water'. There was also an option to tick a box indicating 'Intermediate swimmer -basic skills - able to swim 25 metres with a recognisable stroke'.
4. As was apparent from the information provided by the parents to the school prior to the excursion, of the 28 Year 2 students there were 16 beginners and 12 intermediate swimmers, that is, that was the indication of swimming abilities of the children at that time.

1. Around 14 May, a week before the school excursion to Belfast, Troy Tampion, a teacher at the school, called Belfast about the upcoming excursion and spoke with Shaun Murrihy, a senior lifeguard and pool manager at Belfast. Mr Tampion informed Mr Murrihy of the number of children who would be participating and that the children were Grade 2 students. Mr Murrihy advised Mr Tampion that as a result of the new floating obstacle being available at Belfast an extra lifeguard would be needed for the excursion. As a consequence of that information the school obtained budget approval for the additional lifeguard.
2. During the course of communications between the school and Belfast, Belfast did not request additional information regarding the childrens' swimming abilities and the school did not offer the information about the childrens' swimming abilities that had been collected by them from the parents of the children in the material referred to above.

1. On 21 May 2021, the 28 Year 2 students and three staff members, including Mr Tampion, arrived at Belfast at about 10 o'clock. Also present at Belfast were Mr Murrihy and the additional lifeguard.
2. The school had booked the pool and the use of the inflatable device. The course or the inflatable device was nine metres long and 1.6 metres wide and was similar to a bouncy castle. The inflatable device was set up longways with one end touching the edge of the pool and the other end extending less than halfway into the pool towards the office end of the building. As the inflatable device was set up towards the deep end of the pool, the depth of water in the area where the inflatable device was located ranged from between 1.2 metres and 1.35 metres.
3. Upon entering the pool area the children were introduced to the two lifeguards, Mr Murrihy and Mr McInnes. The children were directed by their teachers not to interfere with other swimmers and were informed about which end of the pool was deep.
4. Mr Murrihy was in charge of the activity with the inflatable device. After the children had changed into their swimwear, Mr Murrihy asked those children who could swim to raise their hands. He then asked the children how many of them had had swimming lessons, of which about a dozen indicated they had. The children then divided into two groups: those that could and those that could not swim, or swim well enough to get themselves to the surface. Those children who could swim were allowed to go with Mr Murrihy to the inflatable device, while those that could not or did not wish to go on the inflatable device, were to remain at the shallow end of the pool.
5. No representatives from Belfast conducted any assessment of the childrens' swimming abilities prior to the start of the activity.
6. Mr Murrihy provided instructions to the children who were lined up in single-file next to the inflatable device. He instructed that they were to jump on and try to get over the obstacles to the end. Once they got to the end or if they fell off along the way, they were to swim to the divider wall in the pool that separated the shallow from the deep, about three metres from the inflatable. At this stage about 20 children had lined up for the use of the inflatable device.
7. As the children lined up at the device, teachers from the school, including Mr Tampion, moved into positions where they believed they could supervise the children. Meanwhile, Mr Murrihy stationed himself adjacent to the inflatable's entrance and Mr McInnes, an additional lifeguard, took up position on the edge of the pool. Mr McInnes stood at the west end of the pool edge, out of the water, about five metres north of Mr Murrihy. He could see down the north side of the inflatable alongside the swimming lane. However, he could not see directly behind the end of the inflatable device.
8. The children commenced taking turns using the device one by one. It soon became apparent to Mr Murrihy, or after only one or two children had had a turn, that they were struggling with the inflatable device task. He jumped into the pool to assist individual children to the dividing wall and help each of them over to the shallow side.
9. At this point Mr Murrihy stopped Mr McInnes from letting any more children get on the inflatable device and instructed him to put a floating rope divider in the shallow pool. Mr Murrihy remained in the pool and positioned himself in water at the exit point of the inflatable device. The children returned to using the inflatable device.
10. From his position in the water Mr Murrihy identified a number of children as weak swimmers and assisted them to get to the edge of the pool where he directed them into the shallow pool area where they were to remain. One of these children he assisted to the shallow area was Cooper.
11. Over the next ten minutes Mr Murrihy saw Cooper on a further two occasions: first, jumping from the pool's divider rope into the water at the shallow end and then standing on the pool's dividing wall, which he directed him to get off.

1. About half an hour later Mr Murrihy had removed at least 12 children from the water around the device and had been required to carry or assist them over the divider to the shallow water. He determined that only six were competent enough swimmers to get back to the edge of the pool from the inflatable device without assistance. Those children were permitted to continue having turns on the device whilst the other children were to remain in shallow water.
2. Meanwhile, in the deep end of the pool, Caroline McRae and her daughter were swimming. At around quarter to 11 Ms McRae spotted what she believed was a boy floating underwater. Initially, she thought he may have been holding his breath but soon realised something was not right and yelled out to Mr Murrihy to assistance. By the time he was able to assist she had managed to grab the child from the pool floor and had transported him onto the pool deck. The child was Cooper, and although Mr Murrihy commenced CPR he was unable to revive Cooper.

1. A expert report from WorkSafe was obtained from Andy Dennis of Life Saving Victoria.
2. Relevant to the Department, Mr Dennis opined that:

'It is industry practice for structured booking processes to be in place for the use of aquatic facilities by school groups. This process captures the information associated with the anticipated users, activities and environments, which enables the level of risk to be understood to a suitable level of accuracy by both parties to the booking and for subsequent safety controls to be put in place. The booking process on the day of the incident did not capture the appropriate information and as such did not enable appropriate controls to be organised nor implemented by either party.'

_'_If this important information (for each of the children in attendance) had been provided to all the supervising facility staff and school staff, and had been appropriately acted upon, that the multiple rescues associated with students in deep water leading up to the drowning event could have been avoided. This information would have made it easy for all non and weak swimmers to have been identified and effectively supervised in the shallow area of the pool from the beginning of the activity.'

Failure to take a reasonably practicable measure - Department of Education

1. Prior to the incident, the Department obtained information about the childrens' swimming abilities from their parent. In respect of Cooper, the Department was informed in writing by his mother that he had little or no experience including in shallow water. This information was not provided to Belfast.
2. At the time of the incident it was reasonably practicable for the Department to eliminate or reduce the risk by providing and maintaining a system of work in which prior to allowing a child or any child to enter the pool and use the device, it provided Belfast with information about that child's swimming abilities.
3. The Department failed to implement the above reasonably practicable measure. Had the information about each child's swimming abilities been communicated to Belfast this could have assisted in reducing the risk of drowning by enabling Belfast to:
4. understand who was attending the excursion and their swimming abilities;
5. identify which of those children were non-swimmers and weak swimmers;
6. understand the extent to which each child was capable of participating in the activity involving the inflatable device; and
7. inform effective supervision of the activity.
8. It was conceded by the prosecution that the evidence did not establish any causal link between the Department's failure to implement the reasonably practicable measure and Cooper's death. That is, it is not alleged by the prosecution that the failure of the Department to provide the information to Belfast caused the death of Cooper.
9. I was provided with detailed submissions from both parties and referred to relevant material - I have taken those matters into account.

1. A number of victim impact statements have been prepared by family members and friends of Cooper. The question arose as to the admissibility of their contents in these proceedings against the Department. I note that in the other related proceedings against The Group the material is admissible and it was not submitted otherwise by representatives of The Group.
2. Further, I was informed that the position of those who had indicated that they wanted the contents of their statement read in court had changed from what was previously indicated on the cover sheet of their statements. None of the individuals who made victim impact statements in these proceedings against the Department had therefore requested that their statement be read in court (see s8Q of the Sentencing Act) It was therefore not necessary for me to determine in the course of the hearing the admissibility of the victim impact statement material. The parties accepted that the determination of the admissibility of the material could be included in these reasons.
3. Counsel for the Department submitted that in the circumstances of this case, where the prosecution conceded that there was no causal link between the Department breach and Cooper's death, that the material contained in the victim impact statements was inadmissible.
4. Counsel for the prosecution submitted that the victim impact statements were admissible. It was submitted that in determining whether the makers of the statements had suffered an injury, loss or damage as a result of the offence, that it was necessary to consider the whole of the narrative, that even though there was in this case an intervening act with The Group's actions, the grief or loss suffered could still be characterised as 'a' as opposed to 'the' direct result of the breach or the offence.
5. Victim impact statements serve two purposes; namely to inform the court about a consequence of a crime and to offer victims a meaningful vehicle to participate in criminal proceedings. The reception of a victim impact statement into evidence on a plea should be approached with a degree of flexibility (See Hester [2007] VSCA 298 at 11). However, there is a key criterion that must be met before the court should receive a victim impact statement, that being the source must come under the definition of 'victim' under the Sentencing Act.
6. Section 3(1) Sentencing Act defines 'victim' - 'Victim in relation to an offence means a person who ... has suffered an injury, loss or damage as a direct result of the offence whether or not that injury, loss or damage was reasonably foreseeable by the offender.'
7. The phrase 'as a direct result' in this definition is concerned with causation. It will be sufficient if the offence is a significant cause of the injury, loss or damage and it need not be the only cause. (See Kaplan v. Lee Archer [2007] VSCA 42; (2007) 15 VR 405 at paragraphs 22 to 28) The adjective 'direct' is intended to exclude those results which are but tenuously related to crimes that in their contribution is a minor factor in the production of injury.
8. This criterion clearly limits the use of victim impact statement material in sentencing for OHS offences when there is, as in this case, a concession that the death of Cooper was not 'caused' by the Department's breach. It was not alleged or proven that the breach of duty caused actual harm such as the death of Cooper or was an operative cause of it. I understand that there is a common practice that victim impact statement material is received without objection even though there is no causal connection in some OHS prosecutions. Perhaps this is reflective of the recognition of the value that the material has in the social rehabilitation of victims. However, as the term 'victim' is currently defined under the Act and with the objection taken as to the admissibility of the material, I regard the victim impact statement material in this case as inadmissible.
9. I was last night provided with decision Varghese v The King [2024] VSCA 115 which tends to support the view that I have taken.

1. I turn then to the objective seriousness of this offence. There are three factors to consider in making the assessment:
2. First, the extent of departure from the duty that is owed including the level or extent of the Department's disregard for the safety to whom a duty was owed. This involves an assessment of the degree to which the Department departed from the duty that was owed to avoid the risk.
3. Two, the extent of risk to the health and safety that was created or reasonable foreseeable.
4. And three, the likelihood of the risk or potential harm occurring.
5. The prosecution submitted the breach by the Department must be regarded as serious:
6. the conduct involved a departure from safety standards;
7. before the incident occurred the Department had obtained the relevant information from parents of the children. This would have assisted Belfast in making appropriate arrangements as to what was required given the childrens' capabilities prior to the excursion;
8. if the information had been provided in the experts opinion, multiple rescues that took place in the pool that day of the incident with the children could have been avoided;
9. the foreseeable consequence included death;
10. the likelihood of the risk occurring was real. The information was important and if acted upon could have reduced the number of rescues that day;
11. the safety measures in the Department providing the information could have effectively been done easily and at no cost to the Department.
12. The Department submitted the objective seriousness of the breach should be regarded as low and highlighted the difference between them and the position of The Group .
13. the Department had an extensive suite of policies procedures and systems in place to ensure the safety of school children in respect of all types of excursions and school related activities, including swimming lessons and other swimming activities. (See paragraphs 14 to 17 in the submissions). Many of the policies were developed with guidance from Life Saving Victoria. (See paragraph 27). The Department was, it was submitted, very close to satisfying its duty under s23 of the Act
14. the breach was administrative in character relating to the failure to provide information. There could not be established any causal link between the death of Cooper and the breach by the Department
15. the school collected the information from parents relevant to the excursion or in this instance as to the swimming abilities of the children as required in those policies;
16. the Department policy allowed for the engagement of an external third party provider to deliver specific activities, in this instance the swimming activity, at Belfast. The Department through the school complied with all the requirements in engaging Belfast to undertake this activity;
17. Belfast did not request the information from the school;
18. The breach did not involve a departure from any of the Department's systems that were in the place at the time;
19. The systems in place at the time showed high regard for the safety of the children with details and requirements for planning and risk assessment for activities such as swimming;
20. The Department conceded that the nature of the risk was serious but that the likelihood of the breach resulting in a child drowning was low in circumstances where the policies that were in place required Belfast and the Department, through the school, to conduct a risk assessment of the activity and the activity itself would be run by Belfast, whose expertise on which the Department could rely.
21. Although, as submitted by the prosecution, the failure to provide the information was contrary to industry standards, those standards were applicable to pool operators such as Belfast and not the Department. The Department were entitled to expect that Belfast would comply with those standards.
22. In the course of the hearing I questioned a number of times why it was that the Department obtained the information if they were not going to provide it to Belfast. Counsel responded that the information was obtained in accordance with Department policies for planning purposes in respect of relevant activities by the school.
23. However, this information specifically related to the very activity to be engaged in on the excursion. Though relevant for planning purposes of the school, it was also highly relevant to be provided to the body providing the service who were to carry out the very activity that the school had recognised, by obtaining the material from the parents, involved a potentially significant risk to the safety of the children.
24. Clearly the Department relied to a significant extent on the expertise and safety plans and policies being in place at Belfast. As described by counsel the Department was a step removed, yet the practical reality of the situation was that the children remained under the care and supervision of the school or the Department whilst on the excursion, together with Belfast. Though the responsibilities for the safety of the children in the course of the activity was clearly on Belfast, that did not mean that the school or the Department did not have a role in ensuring, as far as practicable, that steps were taken to ensure the safety of the children. The plea recognises that was so. That is not to burden the Department with duties of Belfast, they differed, but the Department's duty to avoid risk to the safety of the children whilst on the excursion remained, and the failure to reduce that risk by the providing the information they had obtained which was directly referable to this activity and the excursion, was serious.
25. Clearly, there was an inherent danger in the activity with the potential consequences significant. The failure to provide the information to Belfast in this case was a serious breach.
26. Although the objective seriousness of the breach, general deterrence and denunciation are principal sentencing consideration in OHS matters of this kind, there are some matters in mitigation that need to be taken into account.
27. The Department is responsible for the delivery of education services to over a million Victorian children. As well as education, it plays a vital role in the provision of other services for teaching of swimming and water safety as part of its curriculum. It is a government department as opposed to a corporate entity providing a service for profit.
28. Although the Department has some prior convictions, it was submitted they were of little relevance in the context given the size of the Department's operations and its consequent exposure to risks in carrying out those operations . None of these prior matters relate to issues arising in the provision of swimming activities by schools and I accept that specific deterrence has limited operation.
29. The Department pled guilty to the charge at an early stage. There is a utilitarian value to the plea of guilty as the Department has saved the time and costs of a trial to the community. Significantly none of those involved in this incident, in these instances the teachers and Belfast staff who were involved, were required to re-live the traumatic incident again in giving evidence at trial. The Department's plea of guilty is indicative of remorse and consistent with the submission made by counsel at the outset by the Department of sincere condolences and an acknowledgement of the enormous impact on the family and friends of Cooper, the school and local community in general. The plea also demonstrates a willingness to facilitate the course of justice and an acceptance of responsibility for the offending.
30. I was informed that since this incident there has been an appropriate revision and amendment of the Department's policies. Schools are now required to assess student swimming abilities prior to the water activity being carried out. I was informed that parents can now be confident that information they provide to the school regarding their child's swimming abilities will be provided to the relevant party involved in the swimming activity, that there have been broader improvements generally to the guidance and resources as well. As far as this breach is concerned, the issue has been fully addressed.
31. I was referred to a number of comparative cases of which De Kort and WCA were of most assistance. Although the factual circumstances are different, they provide assistance in determining the applicable sentencing range.
32. In Occupational Health and Safety sentencing for this offence, and indeed most Occupational Health and Safety offences, a monetary penalty is all that is realistically available. The penalty must be one that properly meets the key sentencing purposes. Those key sentencing purposes here are public denunciation, and of particular importance is deterrence, especially to others who must recognise and act to ameliorate risks, to deal with those risks and not breach duties, or in particular not disregard safety.
33. Submissions were made regarding the difference in breach and seriousness of it by the Department as compared to The Group. I accept that submission. However, as I indicated in the sentence just handed down in respect of The Group, they are in a peculiar or unique position being a charity and dependent on volunteers and fundraising to a significant extent in carrying out their business, which is of significant value to the community. The Department is not in that position. The categorisation of The Group puts the Department in a very different position regarding the nature of the organisation itself and ability to pay a fine and quantum of it.
34. It is also important to recognise that no amount of fine is reflective of the value of Cooper's life. As indicated a number of times, it was conceded the Department's breach was not causative of his death. However, this was, as I have mentioned, a serious breach relating to the safety of young school age children engaging in an activity arranged by the school with obvious inherent risks.
35. I propose to convict the Department and fine the Department $100,000.
36. If the Department had not pleaded guilty to this matter, I would have imposed a fine of $170,000.
37. Anything else?
38. MR CHISHOLM: No, Your Honour.
39. HER HONOUR: Thank you, I will stand down.