DPP v Yarra Valley Park Lane Holiday Park Pty Ltd [2024] VCC 1863

Reports Cited: Sentencing Advisory Council, Sentencing Occupational Health and Safety Offences in Victoria: Consultation Paper (Feb 2024); Christopher Maxwell QC, Occupational Health and Safety Act Review (2004).

Sentence: Fine of $475,000 with conviction. Adverse Publicity Order.

1. On 28 April 2022, Yarra Valley Park Lane Holiday Park Pty Ltd ('Yarra Valley') was charged that on 13 March 2021 it contravened s 26 of the Occupational Health and Safety Act 2004 (Vic) ('OHSA').
2. Yarra Valley was charged that, being a person who had, to any extent, management or control of the workplace, it failed to ensure, so far as was reasonably practicable, that the workplace was safe and without risks to health.
3. The following particulars were appended to the charge:
   1. You operated the BIG4 Yarra Valley Holiday Park [at 419 Don Road, Healesville ('the workplace')]
   2. There were several large trees that were located throughout the workplace including (but not limited to) trees located near the southern boundary of the workplace.
   3. Campsite 93 was located near the southern boundary of the workplace.
   4. There was a risk that a large tree branch (or limb) could break free from the tree and fall to the ground below ('the risk'). If a person or persons were underneath the tree at the time, they could be struck by the falling tree branch or tree limb resulting in serious injury or death.
   5. It was reasonably practicable for you to reduce the risk by engaging an arborist to undertake an annual assessment of the trees at the workplace and follow any recommendations made by the arborist.
   6. You failed to implement the measure at Particular 5.
   7. The matters in Particulars [1]-[6] were matters over which you exercised management or control.
   8. Persons exposed to the risk of serious injury or death as a result of your conduct included, but were not limited to, Benjamin Murphy.
4. Having been arraigned on 12 August 2024, Yarra Valley was found guilty by a jury on 27 August 2024. The trial ran for three weeks and included an inspection of the Park by the jury on 13 August 2024.[1] I also attended the inspection together with counsel. My associate directed the jury to particular agreed locations.
5. The court's task is to impose an appropriate sentence on Yarra Valley for the crime the jury concluded that it committed. Before doing that it is necessary to set out some background matters.

1. Yarra Valley Holiday Park is situated at 419 Don Road, Badger Creek (the Park). The Park is operated by Yarra Valley.
2. The Park is approximately 70 acres in area and contains cabins, powered caravan sites as well as powered and unpowered camping sites. The southern border of the Park is bounded by Badger Creek. A number of unpowered camping sites are situated along the creek, including campsite 93.
3. As at March 2021 a large number of trees, approximately 20 metres tall, were located in the unpowered area adjacent to Badger Creek including around campsites 60-2, 80-91 and 92-107.

1. On 12 March 2021, Benjamin Murphy and Mark Kidd attended the Park and booked two campsites. Mr Murphy erected his tent at campsite 93; Mr Kidd put his tent up nearby.
2. The camping area was lined with tall trees, many of which had large branches hanging over the designated camp site. In particular, large trees were located at campsite 93. Some of the branches of those trees hung over the campsite.
3. On 13 March 2021, during the night, a tree branch fell from a tree located about 5 to 10 metres from Mr Murphy's camp-site. The branch was not one that overhung the campsite. However, because of the way it fell, the branch landed on Mr Murphy's tent and struck his head.[2] Mr Murphy sustained fatal injuries in the incident and died at the scene.

1. Yarra Valley is to be sentenced like any other offender in this State. The purposes for which the sentence can be imposed and the matters to which the court must have regard in determining the appropriate sentence are outlined in the Sentencing Act 1991 (Vic).[3]
2. One important matter is the maximum penalty. The maximum fine that can be imposed on a company which breaches s 26 of the OHSA is 9,000 penalty units. As at 13 March 2021, a 'penalty unit' was worth $165.22. The maximum fine is therefore $1,486,980.
3. The company is to be sentenced on the basis of the jury's verdict and the Court's findings about any aggravating and mitigating circumstances of the offence of which Yarra Valley has been found guilty.[4] Any aggravating circumstances must be established beyond reasonable doubt.[5] I will return to this important aspect of sentencing law later in these reasons.
4. It is first necessary to consider the section of the OHSA under which Yarra Valley was charged.

1. As noted, Yarra Valley has been found guilty of failing to meet the statutory duty imposed by s 26 of the OHSA on the occupier of a workplace. The case of Frewstall (to which I will refer to shortly) was a prosecution of an 'employer' brought under section 23 of the OHSA.[6] That provision imposes duties on an employer for the benefit of persons other than employees of the employer (e.g. contractors).
2. The so-called 'Frewstall principles' have also regularly been applied in cases concerning prosecutions under s 21 of the OHSA.[7] That section imposes a duty on an employer for the benefit of its employees.
3. Section 26 differs from sections 21 and 23 in four important respects.
4. First, the duty is imposed not on an employer but on a person who has, to any extent, management or control of a workplace. While it may be expected that such a person will also be an employer this may not necessarily be the case.[8]
5. The section imposes a duty akin to the tortious responsibility of an occupier of premises to those who enter the premises. However, unlike the civil duty, a breach of the duty under s 26 attracts criminal sanctions.
6. Secondly, the duty is not owed to a particular class of people. Rather the duty imposed is to ensure so far as is reasonably practicable, that the workplace and the means of entering and leaving the workplace are safe and without risks to health.
7. Implicitly, those who are protected by s 26 are people who seek to enter or leave the workplace concerned and those who are at the workplace.
8. On the facts of this case, the 'workplace' was a holiday park and the people who were protected included campers such as the late Mr Murphy and his fellow camper, Mr Kidd.
9. The third difference is that, in the case of the s 21 duty, and often in the case of the s 23 duty,[9] the people who are protected will themselves have a duty to take steps for their own protection. In the case where an employee is owed a duty by their employer under s 21, the employee will be required to co-operate with their employer with respect to any action taken by the employer to comply with the Act.[10] For example, an employee provided with a safety helmet will be required to wear it. At least in this sense, the safety of the employee can be seen as a shared responsibility, i.e. shared between the employer and the employee.
10. By contrast, where the person protected by the s 26 duty is not an employee of the duty-holder, the person will have no duty such as that imposed on employees. They will be entirely dependent on the person in management or control of the workplace for the protection of their health and safety.
11. The final difference between the section 26 duty and the duties imposed by sections 21 and 23 is that the people protected by the section 26 duty, at least on the facts of this case, have paid the duty-holder to be present at the workplace. They will include families with young children. By contrast, in cases where sections 21 and 23 are concerned, the people protected by the duties (employees, contractors, etc) are usually being paid to be present.
12. The question for present purposes is whether these differences mean that sentencing under s 26 differs in any way from sentencing under sections 21 and 23. Could it be said, for example, that a higher standard of care is owed under s 26 than is the case under the other sections? When these questions were raised with counsel, neither submitted that there is any relevant difference. They both submitted that the duty is to do what is reasonably practicable to safeguard the protected class of people. In the absence of any binding judicial authority, I accept this is the case.

1. Returning then to the assessment of the objective gravity of Yarra Valley's breach of the law, it is trite that the objective seriousness of a contravention of the OHSA is the primary factor in determining the appropriate sentence. Correspondingly, subjective mitigating factors such as a plea of guilty, previous good character, etc will play a subsidiary role.[11]
2. In DPP v Frewstal Pty Ltd,[12] the Court of Appeal outlined the principles by which a sentencing court should be guided when assessing the objective seriousness of offending against the OHSA.
3. Priest and Kaye JJA, explained that 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.
4. OHSA 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.[13]
5. 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.

1. 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. At this stage of the court's task, the fact that the breach in a particular case resulted in death is relevant only in the sense that it might manifest or demonstrate the degree of seriousness of the relevant threat to health or safety resulting from the breach.
2. Therefore, in assessing objective seriousness, a court will ascertain the extent of a person's failure to meet their statutory duty. This will be informed by three related factors:

(1) The extent of the departure from the duty owed - i.e. the 'measure of evidenced disregard concerning ... safety';

(2) The extent of the risk to health and safety thereby created, i.e. the 'foreseeable potential consequences' of the breach; and

(3) The likelihood of the potential harm occurring.[14]

1. It will usually be helpful in assessing the extent of the departure from the duty to consider the factors identified in s 20(2) of OHSA. These are the factors that the jury applied to ascertain what was 'reasonably practicable' at the relevant time for Yarra Valley to do to address the identified risk.
2. At the sentencing stage, the more 'reasonably practicable' an identified risk control measure was, all else being equal, the more egregious will be a failure to have implemented it.
3. Section 20(2) provides that regard must be had to the following matters:
   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.
4. Addressing these matters sequentially in relation to the present case, the evidence establishes that there was a real likelihood of the risk eventuating. There were hundreds of trees at the Park many of which were mature and therefore prone to dropping limbs.[15] Many of the trees were located near camping sites and other locations where patrons (including children) would be expected to be such as playgrounds and BBQ areas.
5. The risk of course did eventuate on 13 March 2021 when a significant limb broke off one of the mature trees. As noted, this had tragic consequences. However, this was not the only tree in the Park that may have dropped a limb or branch.
6. An arboreal assessment of 277 trees at the Park in the days immediately after this accident identified 137 trees that required remedial work to make them safe. In other words, nearly half of the trees that were examined exhibited safety concerns. Of those 137 trees, 85 required risk mitigation work in the next 12 months.[16] However, as Mr Russell who appeared for Yarra Valey pointed out, no trees requiring immediate remedial work were identified in the assessment.
7. Turning to s 20(2)(b), the degree of harm that would result if the risk eventuated. It was common ground that the relevant risk was serious injury or even death.
8. The real dispute between the parties at trial was centred on s 20(2)(c) - what Yarra Valley knew or ought to have known about the hazard or risk and any ways of eliminating or minimising it.
9. Mr Chisolm who appeared for the Director submitted that a consideration of this factor along with the others made Yarra Valley's breach 'very serious'.[17] Mr Russell took issue with this both before the jury and again at the sentencing stage.
10. It is therefore necessary to consider the evidence in some detail.
11. I commence with what Yarra Valley knew.
12. Mr Chisolm referred to a tree safety report commissioned by Yarra Valley in 2015. Mr Joshua Hellings, who has been Yarra Valley's general manager since 2019 and has been involved in the holiday park business since 2012, explained that the business had been started by his parents in 1992 when they opened a caravan park in Traralgon. The business expanded gradually and they eventually purchased the Healesville park in 2015.
13. Mr Hellings explained that the business had not previously operated a park with 'this number of trees in its environment'. He explained that Yarra Valley commissioned the report from Aus Tree Contracting Pty Ltd, a firm of arborists, because it 'wanted to engage an expert to consider the risk and give us some advice and make sure the trees were in appropriate condition'.[18] He went on to explain that 'we wanted to make sure it was as safe as we could be' [sic].[19] He thought that the report was concerned with 'all the trees in the caravan park space'.[20]
14. The 2015 report is in evidence although its author was not called. It appears the assessment was completed in one day as the cover letter dated 20 October 2015 states that 'conditions on the day of the visit were fine...'. The report indicates that 36 trees were assessed of which a number were identified as 'high risk level' which the report explains means that 'urgent attention' was required. Importantly, the report informed Yarra Valley that '...upon request a full Tree Risk Appraisal and subsequent report can be obtained at additional costs that can be quoted upon request'.[21]
15. Mr Hellings was asked if Yarra Valley obtained such a report. He responded that Yarra Valley 'didn't believe it was necessary'.[22] He was not asked if the matter was considered by the Yarra Valley Board or management. He was not asked why a further report was not sought. In particular, he was not asked if cost was a consideration.
16. What may be inferred from this evidence is that in October 2015:

(a) Yarra Valley was aware that the Park that it had purchased had a large number of trees which could present a danger to its patrons;

(b) That a professional arborist was a source of expert advice concerning the management of that risk;

(c) That a (presumably) random sample of the trees in the Park revealed a number that required urgent attention; and

(d) The firm of arborists that had been engaged by Yarra Valley were able to provide Yarra Valley with a full tree Risk Appraisal if requested.

1. Although Yarra Valley did not follow up on that offer, the evidence before the court is that Yarra Valley did engage arborists on a number of occasions between October 2015 and March 2021. These were one-off engagements to complete specific tasks such as removing a dead tree.[23] As Mr Chisolm submitted, the commissioning of the 2015 report and that ongoing business practice is evidence that Yarra Valley was aware of the risks of falling tree limbs and the expert role that arborists could play in assisting Yarra Valley to keep its patrons safe from the risk.
2. Turning to what Yarra Valley ought to have known, this is to be considered in light of the principles of health and safety protection in s 4 of OHSA. Of these, the most important for present purposes are in s 4(1) and (3) respectively:

(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.[24]

(2) 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. It is well established that the proactive nature of an employer's duty under the OHSA carries with it a concomitant responsibility to actively seek out information about risks and the means of controlling risks. One source of information about such matters will usually be what others in the same industry are doing.
2. It is not to the point that a given risk control measure is not prescribed in a regulation or that the work safety regulator has not stipulated that the measure should be implemented. Such questions took up considerable time during the running of this trial but they are of little moment under the law as the jury verdict reflects.
3. The evidence before the jury which informs what Yarra Valley ought to have known included evidence that the Yarra Ranges Council, which governs the land where the Park is located, had a Tree Policy which it had published in 2016. The Policy was tendered in evidence and its implementation was explained by Paul Mechelen, the co-ordinator of the Council's Tree Management Team. Mr Mechelen is a trained arborist who authored the Policy with a contractor's help. He explained that the Policy is freely available on the Council web-site.[25]
4. The Policy classifies areas under the Council's control into four risk categories. Caravan Parks are classified as 'Very High Risk'. Mr Mechelen emphasised this is because such sites generally have got very large trees and there is either a lot of people going there or there's buildings or a lot of vehicles or all of the above.[26]
5. Mr Mechelen explained that, under the Council's policy, a site that is classified as 'Very High Risk' is the subject of an annual tree inspection by a qualified arborist.[27] He explained the nature of the inspections that are conducted and produced examples of assessments that had been made at the Doon Reserve Caravan Park.[28]
6. There was also evidence before the jury of the tree safety practices of other privately operated camping grounds and caravan parks. While this did not establish a universal practice, it did demonstrate that in 2021, a number of operators of such workplaces were arranging for arborists to assess the safety of their trees on an annual basis.[29]
7. Turning to s 20(2)(d) of the OHSA, which is concerned with the availability and suitability of ways to reduce the risk, the evidence demonstrates that the risk control method of arranging for an annual arboreal assessment and implementing the recommendations was both available and suitable. In addition to the evidence about what was occurring before March 2021, the evidence is that since that time, Yarra Valley has implemented this practice quite successfully.[30]
8. Finally, although there was limited evidence about the cost of annual assessments, it was no part of the defence case that the costs associated with annual assessments were a relevant consideration. Mr Hellings told the jury that Yarra Valley was happy to pay for the annual assessments.[31]
9. Based on my consideration of the evidence about 'reasonable practicability', I concluded that the risk control identified by the prosecution was very much a reasonably practicable one which a significant business like Yarra Valley should have had in place at least by March 2021, if not earlier.
10. Adapting the language of Amcor, the extent of the departure from the duty owed, or Yarra Valley's 'evidenced disregard concerning ... safety' was significant.
11. I have already considered the extent of the risk created and the likelihood of the risk occurring.
12. Taking all of those matters into account, I conclude that Yarra Valley's failure to comply with its duty was significant. Put another way the objective gravity of the breach found by the jury was considerable.
13. Mr Russell submitted that the court's assessment of the gravity of the breach should be informed by a consideration of Yarra Valley's existing system for managing tree failure risks. As Mr Russell put it, Yarra Valley had an 'extensive system in place' between 2015 and 2021.[32] That system consisted of four employees who conducted regular inspections. If they noticed trees that were of concern they could perform the remedial work themselves or call in an arborist.[33]
14. However, none of the Yarra Valley employees doing this work was a qualified arborist. The jury must be taken to have accepted the central thrust of the prosecution case that it is preferable to have an arborist assessing tree-related risks than an unqualified maintenance worker. I reach this conclusion without embracing Mr Chisolm's characterisation of Yarra Valley's system as 'woefully insufficient'.[34] It is unnecessary for me to assess the existing system. I note for example, that there was other evidence of Yarra Valley's competitors having similar arrangements in place.[35]
15. Rather, I reach this conclusion because the jury was expressly directed by me, that to convict Yarra Valley, they must first be satisfied to the criminal standard, that the existing tree safety system in place as at March 2021 did not meet Yarra Valley's statutory duty under s 26 of the OHSA. That direction was given in accordance with the observations of the plurality in the High Court decision of Baiada Poultry Pty Ltd v The Queen.[36]
16. Implicit in the jury's verdict is that they were so satisfied.

1. I accept that Yarra Valley did not ignore the risks associated with trees at the holiday park. This was not a case of a company that did nothing in the face of an obvious risk. Yarra Valley conducted an initial tree safety audit when it assumed responsibility for the Park in 2015 and had a system of regular inspections. It engaged arborists to conduct remedial work when necessary.
2. After the accident in March 2021, Yarra Valley immediately engaged an arborist to conduct an audit of its trees and implemented all of the recommendations. It has followed this process annually under its promulgated Tree Management Policy ever since.
3. Adherence to this system is the responsibility of the Health Safety and Environment Manager. The system now in place at Yarra Valley is one that should inform occupiers of similar workplaces.
4. Yarra Valley has also implemented a range of other improvements to the management of occupational health and safety.[37]
5. Yarra Valley cooperated with the investigation by WorkSafe Victoria.
6. The company has no prior convictions for any offences and has not offended since March 2021. It is a company of good character to the extent that a company has a character.

1. It will be recalled that the accident at the Park on 13 March 2021 claimed the life of Benjamin Murphy.
2. After the hearing of the plea, the prosecution filed two victim impact statements with the court. The first was completed by Lynda Lee Murphy on 5 November 2024.[38] Mrs Murphy is Benjamin's mother. Mrs Murphy describes the anguish caused by her son's death which she explains has led to depression and anxiety requiring medication.
3. The second, dated 6 November 2024, is from the late Benjamin Murphy's widow, Ms Tina Murphy.[39] Ms Murphy explains the impact of her husband's death on her and on their three children. She explains that the family will never recover from their huge loss which will haunt them for a lifetime.
4. The prosecution contends that both Mrs Murphy and Ms Murphy are 'victims' of the offence of which the jury found Yarra Valley guilty. Yarra Valley submits that they are not 'victims' in the legal sense. It contends that the victim impact statements are inadmissible because the prosecution is unable to prove that Benjamin Murphy's death was caused by Yarra Valley's failure to comply with the law.[40]
5. As noted earlier in these reasons, it is not well understood in the community that occupational health and safety offences are risk-based and not outcome-based. This confusion is caused in part by the practice of the prosecution authorities of commencing such cases in response to workplace accidents that have caused someone to be injured or killed. The accident that precipitated the prosecution is understandably seen by all of those involved, and especially the family members of the person injured or killed, as part of the prosecution.
6. Where a jury finds an occupational health and safety charge proved 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 1991 (Vic). That Act identifies both the purposes for which a sentence may be imposed and the matters to which a court must have regard.[41]
7. 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'.[42]
8. 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).[43] 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.[44]
9. As was the case in Vibro-Pile, there was sufficient evidence during this trial to enable me to make an assessment of the consequences of Yarra Valley's breach of the OHSA.[45] In this regard, I have taken into account what I saw at the inspection of the Park that was conducted during the trial[46] as well as the evidence before the jury.

1. It is to be recalled that the prosecution case was one of omission. It contended that Yarra Valley breached s 26 of the OHSA by failing to engage an arborist to conduct an annual inspection and implementing their recommendations. To be satisfied that the death of Mr Murphy occurred 'as a direct result of the offence', I would need to be satisfied beyond reasonable doubt[47] of one of two scenarios.
2. In the first scenario the risk of the tree limb breaking free from the tree would be removed. In the second scenario the 'target' would be removed by the implementation of an exclusion zone so that when the branch broke free no-one was under it.
3. The chain of reasoning in relation to the two scenarios may be summarised thus:

(i) an audit of the trees at the holiday park conducted in the 12 months prior to 13 March 2021 would have identified the subject tree as a tree that required remedial work; > > (ii) one of the recommendations made by the arborist in that respect would have been to remove the branch that failed; > > (iii) Yarra Valley would have had to accept that recommendation and arrange for that branch to be pruned; and > > (iv) The pruning would have to have been completed by 13 March 2021.

(i) An audit of the trees at the holiday park conducted in the 12 months prior to 13 March 2021 would have identified the subject tree as a tree that required remedial work; > > (ii) One of the recommendations made by the arborist in that respect would have been to implement an exclusion zone around the subject tree; > > (iii) Yarra Valley would have had to accept that recommendation and arrange for implementation of an exclusion zone so that a person could not camp at camping site 93; and > > (iv) The exclusion zone would have had to be in place on 13 March 2021.

4. This process of reasoning in the law is referred to as a counterfactual, i.e. a consideration of what might have happened in different circumstances. It is necessarily speculative albeit that it must be informed by the actual evidence in the case. It is a process frequently followed in the law of torts especially in cases where a plaintiff argues that, had they been warned of a danger, they would have acted differently. The courts have noted that there is an air of 'unreality' about such reasoning.[48]
5. Despite the speculative nature of this exercise, it is necessary for the court to undertake it.
6. In this regard, it is significant in my view that it was no part of the prosecution case that it was reasonably practicable for the risk of tree failure to be controlled by either pruning of the tree or the implementation of an exclusion zone around the subject tree. Had that been the prosecution case accepted by the jury, the argument that the breach caused Mr Murphy's death would clearly have been far stronger.
7. Nor was it part of the case that the jury found proved that the failure to arrange for an annual audit resulted in the death of Mr Murphy. The case may be contrasted with similar cases where one of the particulars alleges that connection.[49]
8. The counterfactual is that Yarra Valley had implemented the process that the jury concluded was reasonably practicable. In other words, Yarra Valley had 'engaged an arborist to undertake an annual assessment of the trees at the workplace and followed any recommendations made by the arborist'. What difference would that have made to the events on 13 March 2021?
9. I will approach this difficult question by making the assumption that there had been assessment of the trees at the Park by an arborist at the mid-point of the 12 month period immediately before 13 March 2021, i.e. on 13 September 2020. I have chosen that date on the basis that it is near enough to the date of the death to reflect the circumstances on that date but early enough that any recommendations that were made in relation to the subject tree could have been implemented.
10. I have assumed that, in carrying out the assessment, the arborist determined which trees to examine and the nature and extent of the examination. There are too many trees at the Park for all of them to be assessed in one assessment. On the evidence heard by the court, the arborist's assessment about where to look would be based in part of the experience and expertise of the assessor and also, in the event that audits had been carried out annually, on the previous audit findings. This is of course one of the benefits of annual assessments - a body of knowledge about the trees is built up over time.
11. Is it likely that a report prepared on 13 September 2020 would have made a recommendation concerning the subject tree, i.e. the one which caused the death? It is far from clear on the evidence before me that it would have. That tree was one of hundreds of trees at the workplace including many older trees that were growing in the vicinity of the campsites which lined the creek such as campsite 93. Other than the subject tree being old and therefore more prone to dropping branches than a younger tree,[50] there was nothing unusual or distinctive about it.
12. As noted earlier in these reasons, there was an assessment of the Park by Mr James of Melbourne Tree Care in March 2021 immediately after the accident. The report of that assessment dated 26 March 2021 is in evidence.[51] It is relevant to this question. The auditors examined 277 trees or groups of trees 'located along the southern boundary' of the Park.[52] One of the trees inspected was the subject tree (designated as Tree number 229 in the Report).[53]
13. Mr James's evidence was that the assessment was one of the hardest he had performed because he 'knew this would end up in court'.[54] I infer from that evidence that Mr James was especially careful in conducting this assessment and took a conservative approach in making his recommendations.
14. Mr James was asked about the probability of the branch which failed actually failing in the way it did. He was asked to assume that he was making this assessment 'shortly before' the accident on 13 March 2021. His answer was 'less than 1 in 1 million'.[55] He explained that what he meant by this was that there was a 'one in a million chance of this accident occurring'.[56]
15. I will assume in the prosecution's favour that the arborist conducting the hypothetical assessment in September 2020 would have assessed the tree overhanging campsite 93. I will also assume that the assessment would have been thorough enough to identify a risk of failure of one or more branches. What risk control measures would have been recommended? More precisely, would either pruning this very branch or implementing an exclusion zone have been recommended?
16. On the first question, the evidence of Mr Ryder about the mode of failure of the branch is important. Mr Ryder is a highly experienced consulting arborist who impressed me with the thoroughness of his evidence. He conducted a detailed assessment of this very tree shortly after the accident.[57] Mr Ryder's opinion was that the tree was 'not atypical for its species, age and location'. It had an 'adequate canopy of foliage with minimal signs of decline in health'.[58] There was nothing about the tree when assessed from the ground that would have led Mr Ryder to conduct an aerial inspection.[59] Even if he had conducted an aerial investigation of the very branch that failed, he does not think that he would necessarily have picked it up as likely to fail over any other.[60]
17. This expert evidence was essentially unchallenged and uncontradicted. I therefore conclude, based on this evidence, that even if there had been an assessment of this tree as part of a tree audit in September 2020 there is no reason to think that the branch that failed would have been the subject of a recommendation for its removal.
18. Turning to the exclusion zone question, the only evidence that suggests an affirmative answer is from the prosecution expert arborist Mr Hughes. He was asked by the prosecutor to assume that an arborist had performed a tree assessment a week before 13 March 2021. He was then asked to assume that he was the person who had made such an inspection. The relevant evidence is a question by the prosecutor and Mr Hughes's reply :

1. So in your opinion, if you had inspected this tree prior to March 2021, what recommendations would you have made?

1. Oh, similar to the Ryder recommendations, that the best option would be to create an exclusion zone. And once again that's because there is going to be other failures, but we cannot identify completely which part that will be.[61]

1. This evidence was not challenged by defence counsel when he cross-examined Mr Hughes. However, this does not mean it must be accepted by the court. There are three reasons why I approach this evidence with caution.
2. First, Mr Hughes appears to have mis-characterised the opinion of Mr Ryder on this question. Mr Ryder's evidence to the jury was in fact that he would not have recommended an exclusion zone if he had inspected campsite 93 prior to the accident. He would only have recommended that the canopy of the tree be pruned.[62]
3. Secondly, it is significant in assessing this conflicting evidence that Mr Ryder viewed the tree in question very soon after the accident, on 15 March 2021.[63] He prepared a detailed report about the subject tree which includes photographs and a diagrammatic opinion on the mode of the branch failure.[64] By contrast, Mr Hughes did not visit the workplace until June 2024, more than three years after the accident.[65]
4. The third reason why I take a cautious approach to the evidence of Mr Hughes on this question is that the assessment by Mr James after the accident did not result in a recommendation that there be an exclusion zone put in place at campsite 93. It will be recalled that Mr James knew that his assessment was likely to end up in court. I infer from that evidence that if he was concerned that there was an immediate risk associated with campsite 93, he would have recommended an exclusion zone. Rather than making that recommendation, he merely recommended that there should be a reduction prune within 12 months.[66]
5. I am therefore not satisfied to the criminal standard of proof that the hypothetical assessment of the workplace in September 2020 would have recommended an exclusion zone at campsite 93.
6. It follows that, even if Yarra Valley had complied with what the jury has found to have been its legal obligation under s 26 of the OHSA in the year before the accident, Mr Murphy would still have been asleep in his tent at campsite 93 and the result would tragically have been no different.
7. For this reason, I conclude that Ben Murphy's death did not occur as a direct result of the offence. He is not a 'victim' as that term is defined in the Sentencing Act 1991; nor are either Tina Murphy or Lynda Lee Murphy. Their victim impact statements are inadmissible.
8. I am well aware that to the Murphy family and probably others this must seem to be a highly technical legal issue which ignores the human dimension of the family's grief. However, under the law as it stands, it is an analysis that the court is required to conduct. Judges are bound by the law like everyone else.

1. Before leaving this topic, I note that the Sentencing Advisory Council has recently published a Consultation Paper as part of its report to government on sentencing in occupational health and safety cases.[67] Chapter 5 of the Consultation Paper is concerned with the role of victims in OHS cases. The Council discusses the complexities in the law that I have considered and asks whether the preconditions under which courts receive victim impact statements in OHS cases should be changed. In particular the Paper asks whether a more flexible approach such as that found in the Environment Protection Act 2017 (Vic) may be more appropriate.[68] Under that section, a broad range of people may inform a court of the impact of a given environmental offence without necessarily being 'victims'.
2. A number of submissions received by the Council in response to its Consultation Paper supported these proposals and referred to the unsatisfactory nature of the existing law.[69]
3. The final report of the Council including its recommendations to government has not yet been published.
4. Pending that publication, I add my voice to those advocating for a change in this area of the law. The existing definition of 'victim' in the Sentencing Act 1991 is not well suited to OHS offences given their risk-based character.

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.[70] An employer must identify risks to health and safety and take steps to obviate those risks.[71]
2. When a jury finds a company guilty of a breach of duty in a case such as the present, the sentencing Judge must impose a penalty that is appropriate to give effect to all relevant sentencing principles. This is done by following a process known as instinctive synthesis. Such a method requires the Judge to consider all relevant aspects involved in the punitive process.
3. Yarra Valley contested the charge before the jury which was its right. It is not to be punished additionally for doing this but at the same time it does not receive the substantial sentencing discount that is afforded an accused which pleads guilty. A guilty plea in a case such as this is indicative of an acceptance of responsibility, is often evidence of remorse and has the significant utilitarian benefit of saving public resources by way of prosecution and court time and saves witnesses the anxiety of giving evidence at a trial.
4. The Court of Appeal has 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'. [72]
5. The principal sentencing considerations in this case are general deterrence and denunciation. I accept the submission by Mr Russell that specific deterrence has little if any work to do in light of the company's good record and the appropriate response it has made to the tragedy.
6. Ultimately, taking into account the maximum penalty, my assessment of the objective gravity of the offence, and all other relevant considerations including matters of mitigation, I consider that a fine of $475,000 is appropriate.

1. The court has a discretion whether to impose a fine with or without a conviction being recorded. The discretion is controlled by s 8 of the Sentencing Act 1991 (Vic) which provides:

In exercising its discretion whether or not to record a conviction, a court must have regard to all the circumstances of the case including -

(b) the character and past history of the offender; and

(c) the impact of the recording of a conviction on the offender's economic or social well‑being or on his or her employment prospects.

1. Mr Russell submitted that any fine should be imposed without conviction because:
   1. The nature and background of [Yarra Valley] does not disclose a disregard for safety;
   2. There are no aggravating circumstances such as a prior relevant contravention or a deliberate action to cut costs or take the risk; and
   3. A criminal conviction being imposed would severely impact Yarra's reputation in the industry.[73]
2. In reply to a question from the court, Mr Russell could not identify a particular way in which Yarra Valley's reputation would be impacted by the recording of a conviction over and above the jury's verdict.
3. Having regard to the considerations in s 8 of the Sentencing Act 1991 and the objective gravity of the offending, I consider that a conviction should be imposed. As explained earlier in these reasons, Yarra Valley was well aware when it received the report in 2015 from Austree that a full tree risk appraisal and report could be completed upon request. It subsequently engaged arborists including Mr Ryder to perform minor tasks without ever inquiring about complete audits. This was a significant failure to adopt the proactive, curious approach to risk management that the OHSA requires.
4. Further, there is nothing before me to suggest a conviction would be harmful to Yarra Valley's economic or social well-being. I do not regard the impact on directors or employees of Yarra Valley as relevant. They are not charged. I note the discussion of this matter by the Court of Appeal in the case R v Commercial Industrial Construction Group Pty Ltd.[74]

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.[75]
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).
3. The Maxwell report into the predecessor statute to the OHSA 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'.[76] 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 s 135 of the OHSA.
4. For reasons that are unclear, section 135 of the OHSA has been little used over the last 20 years.[77] 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'.[78] 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.[79]
5. 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 and the court received supplementary oral submissions on 18 November 2024.
6. In summary, the prosecution submitted that the Notice required by the APO should:
   1. Refer to the accident that took Mr Murphy's life;
   2. Refer to the evidence given by Mr Lamont of the Caravan Industry Association of Australia to the effect that the Association strongly encouraged its members to inform themselves about risk management;
   3. Include an expression by Yarra Valley of its remorse; and
   4. Refer to the financial and reputational damage resulting from the trial and penalty.
7. Defence submitted that:
   1. Any reference to the accident could suggest that Yarra Valley was responsible for Mr Murphy's death;
   2. It would be preferable to refer to an employer's obligation to proactively address risks rather than selectively referring to the evidence of one witness; and
   3. An expression of remorse at this stage after running a trial would be inappropriate.
8. I have decided that the notice should refer to the accident because that was what led to the investigation and the charge being filed. However, in light of the court's finding about causation, the notice will make clear that the court has found that Yarra Valley's omission did not, in law, cause Mr Murphy's death.
9. I accept the defence argument about Mr Lamont's evidence and I am not attracted to the idea of requiring any defendant to express remorse. An expression of remorse made in such circumstances would lack any genuineness.
10. Finally, on the question of the Notice referring to the financial or reputational damage suffered by Yarra Valley, there is no evidence about this question before the court; nor have the parties agreed the extent or nature of any damage. In these circumstances, I consider that it is inappropriate for the Court to make any reference to this topic in a Notice under s 135.

1. On Charge 1, failing to ensure, so far as was reasonably practicable, that the workplace was safe and without risk to health pursuant to s 26 of the Occupational Health and Safety Act 2004 (Vic), Yarra Valley is convicted and fined $475,000.
2. The Court orders pursuant to s 135 of the Occupational Health and Safety Act 2004 (Vic) that Yarra Valley publicise, in the terms of the Schedule to these reasons for sentence, the offence and the penalty imposed by the court in the industry periodical known as 'The Parkie'. This is to be done on or before 1 March 2025.
3. The Court further orders pursuant to s 135(1)(b) of the Occupational Health and Safety Act 2004 (Vic.) that Yarra Valley give the Victorian WorkCover Authority, by 8 March 2025, written evidence of the action it took to comply with order 2.

ADVERSE PUBLICITY ORDER PURSUANT TO S 135 OF THE OCCUPATIONAL HEALTH AND SAFETY ACT 2004 (VIC.)

On 13 March 2021, Benjamin Murphy was camping in a tent at the Big 4 Yarra Valley Holiday Park in Healesville (the Park). The Park, which was a workplace under the Occupational Health and Safety Act 2004 (Vic.) (OHS Act), was operated by Yarra Valley Park Lane Holiday Park Pty Ltd (Yarra Valley). Mr Murphy's campsite was surrounded by large trees. During the night, a tree branch broke off one of those trees and fell to the ground landing on the tent. Mr Murphy, who was asleep, sustained fatal injuries in the accident.

The circumstances of the accident were investigated by WorkSafe Victoria. As a result of that investigation, on 28 April 2022 Yarra Valley was charged with an offence against s 26 of the OHS Act. Section 26 of the OHS Act requires a person in control of a workplace to ensure, so far as reasonably practicable, that the workplace is safe and without risks to health.

The charge brought against Yarra Valley alleged that there was a risk at the Park that a large tree branch or tree limb (or both) could break from a tree, fall to the ground and seriously injure or kill a person below. In order to control the risk, Yarra Valley was charged that it (a) should have engaged an arborist to undertake an annual assessment of the trees at the Park and (b) should have followed any recommendations made by the arborist.

Yarra Valley contested the charge. Following a three week trial in August 2024, Yarra Valley was found guilty of the charge by a County Court of Victoria jury. The jury concluded that Yarra Valley had failed to comply with its duty under s 26 of the OHS Act as the manager of the Park to take all reasonably practicable steps to ensure that the Park was safe and without risks to health.

On 22 November 2024, the County Court of Victoria fined Yarra Valley $475,000 with conviction and ordered it to publicise the offence and the penalty imposed in the form of this Notice.

The Court was not satisfied that Yarra Valley's breach of the OHS Act caused the death of Mr Murphy.

[1] Evidence Act 2008 (Vic) ss 54.

[2] This account of the accident is based on the evidence of a consultant arborist, Cameron Ryder, who gave evidence as part of the defence case. Mr Ryder's diagrammatic explanation of the mechanism of the accident was in evidence before the jury - Jury Folder, tab 17. See also Transcript of Proceedings, DPP v Yarra Valley Park Lane (County Court of Victoria, Rozen J, 12 August 2024) T484-8 ('Transcript') (Ryder).

[3] Section 5(1) and (2).

[4] Director of Public Prosecutions v Vibro-Pile (Aust) Pty Ltd [2016] VSCA 55.

[5] Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1, 19.

[6] DPP v Frewstal Pty Ltd [2015] VSCA 266; (2015) 47 VR 660.

[7] E.g. Director of Public Prosecutions v Vibro-Pile (Aust) Pty Ltd [2016] VSCA 55.

[8] Linfox Resources Pty Ltd v R (2010) 30 VR 507, 9 [25].

[9] Occupational Health and Safety Act 2004 (Vic) s 24 ('OHSA').

[10] Ibid s 25(1)(c).

[11] DPP v Amcor Packaging Australia Pty Ltd (2005) 11 VR 565, 12-3 [35] ('Amcor').

[12] [2015] VSCA 266; (2015) 47 VR 660.

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

[14] Amcor (n 11), 12-3 [35]; Dotmar EPP Pty Ltd v The Queen [2015] VSCA 241, 6-7 [22]-[23]; DPP v Coates Hire Operations Pty Ltd [2012] VSCA 131; (2012) 36 VR 361, 22 [68].

[15] Transcript (n 2) T537.13-18 (Ryder).

[16] Transcript (n 2) T102.19-21 (James); Jury Book, tab 15.

[17] Director of Public Prosecutions, 'Director's Submissions on Sentence', Submissions in DPP v Yarra Valley Park Lane, CR-23-01401, 21 October 2024, [11] ('Directors Submissions').

[18] Transcript (n 2) T578.26-30 (Hellings).

[21] Letter dated 20 October 2015 from Aus Tree Contracting to Yarra Valley Park Lane- Jury Folder, tab 9.

[22] Transcript (n 2) T589.27-28 (Hellings).

[23] Ibid T563.18-564.11 (Hellings); see also Jury Folder, tab 30.

[24] OHSA (n 9) s 4(1), emphasis added.

[25] Transcript (n 2) T305-306 (Mechelen)

[26] Ibid T308.8-17 (Mechelen), tab 27(a), 9.

[27] Jury Folder, tab 27(a), p 11; T309.21-27 (Mechelen)

[29] Transcript (n 2) T232.25-233.27 (Dawson).

[30] HWL Ebsworth Lawyers, 'Outline of Mitigation and Sentencing Submissions', Submissions in DPP v Yarra Valley Park Lane, CR-23-01401, 17 October 2024, [61]-[64] ('Defence Submissions').

[31] Transcript (n 2) T582.28-29 (Hellings).

[32] Defence Submissions (n 30) [12].

[34] Director's Submissions (n 17) [20].

[35] Transcript (n 2) T298-302 (Stirling).

[36] [2012] HCA 12, 7 [17].

[37] Defence Submissions (n 30) [49].

[38] For reasons that will become clear, I have marked these statements for identification only as Exhibit P2 (MFI).

[40] Defence Submissions (n 30) [24]-[42].

[41] OHSA (n 9) ss 5(1) and (2) respectively.

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

[43] [2016] VSCA 55; (2016) 49 VR 676, 55-6 [195]-[200] ('Vibro-Pile').

[46] Counsel for both parties agreed that the court could take into account what it saw at the inspection. Mr Chisolm referred to s 54 of the Evidence Act 2008.

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

[48] See, e.g. Rosenberg v Perceval [2001] HCA 18; (2001) 205 CLR 434, 54-7 [153]-[159] (Kirby J); Hoyts Pty Ltd v Burns [2003] HCA 61; (2003) 77 ALJR 1934 at [54].

[49] See, for example, DPP v Cranbourne Turf Club Inc [2023] VCC 2023 at [86].

[50] Transcript (n 2) T537.13-17 (Ryder)

[54] Transcript (n 2) T154.20-24 (James).

[57] His methodology was explained at Transcript (n 2) T485-7 (Ryder).

[58] Transcript (n 2) T499.21-24 (Ryder).

[65] Transcript (n 2) T415.25-28 (Hughes).

[66] Ibid T127.3-10 (James); Jury Book tab 15, page 9 and 'Tree ID 229'.

[67] Sentencing Advisory Council, Sentencing Advisory Council, Sentencing Occupational Health and Safety Offences in Victoria: Consultation Paper (Feb 2024).

[69] See, for example, the submission from the Workplace Incidents Consultative Committee dated May 2024 and that from the Office of Public Prosecutions dated 28 May 2024. Both are available on the Sentencing Advisory Council's website.

[70] R v Australian Char Pty Ltd [1999] 3 VR 834 at 847; DPP 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 v JCS Fabrications Pty Ltd [2019] VSCA 50 at [51].

[71] Kirk v Industrial Relations Commission (NSW) [2010] HCA 1 at [11].

[73] Defence Submissions (n 30) at [70].

[74] [2006] VSCA 181 at [57] to [59].

[75] DPP 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].

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

[77] 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: Consultation Paper (Feb 2024) at pp 68-73.