Work Health and Safety Act 2012 (SA)

HEARING DATE: 22 April 2025, final written submissions 30 September 2025

DECISION OF: His Honour Deputy President Lieschke

Work Health and Safety prosecution - Guilty plea - 16 year old student suffered head injuries after falling from a broken swing in a school playground - Failure to provide and maintain safe playground equipment, so far as was reasonably practicable - Australian Standard for playground inspections was not followed - No inspections of load bearing moving parts for eight years after installation - Failure to observe that a shackle bolt was severely worn to 5% of its diameter - Playground equipment inspection obligations were delegated on paper to site Principals without them being informed, and without a system for ensuring inspections actually occurred - Aggravating circumstance of the vulnerability of the disabled children exposed to the unsafe swing - Second offence - Held: Objectively serious offence resulting from adoption of a flawed safety system - Fine of $225,000 imposed after reduction by 10% for limited contrition - Conviction recorded.

Work Health and Safety Act 2012

Sentencing Act 2017

Australian Standard AS4685:2017 Playground equipment and surfaces

Patterson v Department of Education and Children's Services & Jones [2008] SAIRC 68

Campbell v Woolworths Group Limited [2021] SAET 53

1. On 25 August 2021, a 16-year-old student was using a playground swing provided by the defendant when one of its severely worn supporting bolts broke, throwing him to the ground. As a result of using the swing, the student was placed at risk of serious injuries and did suffer significant head injuries.
2. The swing failed because one of the two shackle bolts that supported the swing's chains had worn down over years of use so that only 5% of its cross-section remained. That is, 95% of one of two critical bolts had worn away without anyone ever inspecting it.
3. The worn bolt was observable on a visual inspection of the swing's moving parts. Quarterly and annual inspections were required by the applicable Australian Standard, but no such inspection had taken place and the defendant did not have a system for ensuring they occurred.
4. Following an investigation by SafeWork SA, the Department for Education was charged with one breach of its primary safety duty as follows:

1. On 25 August 2021, at Port Augusta West in the State of South Australia, the Defendant, being a person conducting a business or undertaking, and who had a health and safety duty, failed to comply with that duty, and that failure exposed [a Student] to a risk of serious injury.

Contrary to section 32 of the Work Health and Safety Act 2012 (SA). This is a minor indictable offence.

• 2.1 At all material times ... the Defendant owed a health a safety duty within the meaning of s 19 of the WHS Act to the [students attending its] ... Port Augusta Special School located at 27 McSporran Crescent, Port Augusta West in the State of South Australia (the School).
• 2.2 [The Student] was a 16-year-old boy enrolled at the School in 2021 to study year 11.
• 2.3 On 25 August 2021, the Student was exposed to a risk of serious injury while using a double bay quad swing set (the Plant) at the School when the attachment of the swing to the frame of the Plant snapped on one side (Risk).
• 2.4 The injuries sustained by the Student on 25 August 2021 when he fell from the Plant after the swing snapped, were a manifestation of the Risk.
• 2.5 At all material times, the Plant was an asset owned by the Defendant and located at the School.
• 2.6 At all material times the Defendant was responsible for the management and maintenance of plant, structures and equipment at the School, including the Plant.
• 2.7 At all material times the maintenance of plant and equipment at the School was managed pursuant to the Across Government Facilities Management Arrangements (the AGFMA).
• 2.8 The Defendant failed to maintain, so far as was reasonably practicable, a safe system of work in that it failed to:

(i) ensure that the Plant had been included as an item of plant requiring annual preventative maintenance on the Preventative Maintenance Schedule (the PMS); and

(ii) ensure the Plant had undergone annual preventative maintenance.

• 2.9 The Defendant failed to maintain, so far as was reasonably practicable, safe plant at the School in that it failed to:

(i) identify and address, during the annual preventative maintenance, the condition of the pin, d-shackle and anchor point of the Plant (with respect to the Risk).

• 2.10 The Defendant failed to ensure, so far as was reasonably practicable, the provision of a safe system of work in that it failed to:

(i) ensure that the School had a documented system of work to track annual preventative maintenance undertaken and/or required on the Plant, under the PMS.

• 2.11 The Defendant failed to ensure, so far as was reasonably practicable, that:

(i) the Principal(s) of the School were adequately trained in the operation of the Defendant's requirement for annual preventative maintenance of the Plant.

1. In late 2024, the prosecution and defendant agreed that the original charge would be withdrawn and refiled, based on the same alleged breach of primary safety duty regarding the playground inspection failures. The defendant then entered a guilty plea within one month of the charge being refiled, but more than three years after the offence and about one year after it was first charged.
2. The swing was installed as part of a new playground in 2012. It was inspected when installed. The swing had seats for four users. Each seat was independently suspended by two chains. The failed attachment point referred to in particular 2.3 was one of two simple bolts used to support the chains of each seat. Only one of the four seats was affected.
3. The load bearing 'U' part of the shackle was worn to 5% of its diameter. Later testing confirmed there was no manufacturing defect in the worn shackle. The damage to the shackle likely occurred gradually over multiple annual inspection periods after a brass bush failed. The failed bush and worn bolt were readily identifiable on inspection.
4. The inter-agency facilities maintenance policy referred to in particular 2.7 included a Preventative Maintenance Program, which had the capacity to undertake the required annual inspections. But that depended on the defendant asking another agency for its playground equipment to be included in the program, for which an internal 'fee' was charged. The defendant's relevant decision makers did not ask for this work to be undertaken, and did not inform the school's Principal.
5. None of the school's playground equipment was ever given a comprehensive annual inspection in the eight years prior to the offence. Nor did any of the quarterly inspections include the load bearing moving parts of the swings.
6. Australian Standard AS4685:2017 (previously AS4685:2014) ('the Australian Standard') applies to playground equipment and surfacing.
7. The quarterly operational inspections required checking of the load bearing moving parts for excessive wear, i.e. the shackles and bushes.
8. The annual inspection also requires checking of these critical load bearing parts, with 40% wear being indicated as excessive.
9. The Australian Standard allowed a maximum three-month period between inspections of the shackles and bearings. The Australian Standard was never correctly applied or followed by the defendant in the eight years prior to the offence.
10. The defendant also had the benefit of prior written advice from the Department for Infrastructure and Transport ('DIT') in the form of Technical Data Schedule S51 ('TDS') that outlined the Australian Standard's recommended minimum quarterly inspection of moving parts of playground equipment. Annual and three-yearly inspections were also advised.
11. In March 2021, a senior officer of the defendant was advised by a senior officer of DIT of the Australian Standard's requirement for at least quarterly inspections of playground equipment, and of significantly increased fees for DIT undertaking the inspections, if asked to. DIT pointed out that only 360 of the defendant's playgrounds were then being inspected as required.
12. In June 2021, DIT conducted what it called an Asset Assurance Inspection of the school. DIT then recommended to the defendant that it apply the TDS to the school, so that DIT could include the school in its Preventative Maintenance Schedule. DIT sought a response on two occasions, but none was received, for reasons that were not explained to the Court.
13. By the time of the offence in August 2021, the defendant had not made any arrangement for all its playgrounds to be included on the inspection register, or for DIT to conduct the recommended inspections.
14. The defendant did not keep regular inspection or maintenance records for the playground equipment over the many years it was in use. After installation in 2012, daily and quarterly visual inspections were recorded on only five occasions between April 2018 and January 2021. There is no evidence the critical load bearing moving parts of the swing were ever inspected on these occasions.
15. The defendant had no system of reviewing, checking or auditing to ensure that all playgrounds were included in its centrally controlled inspection and maintenance program. The defendant's existing safety system was limited to a policy-based delegation of its responsibilities to site leaders.
16. The school's Principal at the time was Anthony Holden. He had been appointed in October of 2020. He was aware of a requirement for some form of daily and quarterly inspections of plant, based on his previous experience as a Deputy in a different school. He assumed these were being carried out. He was not aware of the need for annual inspections.
17. The school's Deputy from 2018 to 2022, and Acting Principal for most of 2020, also did not know about a requirement for yearly inspections of playground equipment. She believed no-one had ever done a yearly comprehensive inspection prior to the incident. The Deputy only later became aware of the need for annual inspections through her own training efforts.
18. Nor did the school's Principal between 2017 and 2019 know about a need for annual inspections of playground equipment. She was, however, aware of the Department's system for preventative maintenance of other plant, whereby the school would be informed when inspections and maintenance were due, and staff would then arrange for the work to be undertaken.
19. Particular 2.4 refers to the victim falling from the swing when the bolt failed. The fall involved being thrown and landing on his head about

2.5m from the swing. He suffered immediate degloving injuries to the left side of his face and forehead from eyebrow to scalp, with lacerations to his eyelids and nose. 20. The victim was initially treated at the Port Augusta Hospital, then transferred to the Royal Adelaide Hospital ('RAH') for surgery, with ophthalmic investigation. He remained an inpatient for three days, and later had to return for his eyes to be checked. The victim's father had to take considerable time off his employment to look after him. 21. A Victim Impact Statement ('VIS') was prepared and signed by the victim and his father. It was read out to the court and a copy was provided to the defendant. 22. The family lives in Quorn. The father is a single parent. He was initially phoned by the school and told his son had been in an accident, had gone to hospital, and would need "a few stitches" to a cut on his face. 23. The father left work and arrived at the Port Augusta Hospital about 90 minutes later. His son's head and eyes were covered in bandages, and a note on his forehead said, "Do not remove bandages without a plastic surgeon present". His son was about to have a CT scan of his neck, which had been hyper-extended on impact. They were later airlifted to the RAH, where his son had surgery the next day. They were discharged after three days, and the father took care of his son for the next seven weeks, including taking him to medical appointments as far as Adelaide. He was then able to return to school. The father later needed to take another two weeks off work to deal with the aftermath. 24. The father knew his son "used that swing at every opportunity he got to help him through his day". After the incident, the father saw how his son's autistic symptoms "ramped up" and so sought psychological help for him from the school. The school declined to assist. To make matters worse, the father felt unreasonably criticised for seeking that psychological help, which took two years to access. 25. The father describes the facial injuries as "horrific". His son's forehead was degloved to his hairline, his eyelids were "hanging off", and some tear ducts were severed. He now needs to wear glasses. He has very noticeable scars on his forehead, on both eyelids, and on the bridge of his nose. The scars are a constant reminder of the incident. The victim says he is "devastated" when he looks at them. 26. The father states that he only ever received one phone call from the defendant about the offence. Mr Holden phoned him a couple of days later to enquire about and express some concern for his son. The father does not recall any apology being conveyed, and nothing was received in writing. 27. No offer of any restitution, reparation, or victim of crime compensation was made by the defendant. 28. The defendant's most senior WHS officer since October 2024 has been David Randall. His title is Assistant Director, Work Health and Safety. 29. Mr Randall asserts that at the time of the offence in 2021, the defendant had a "comprehensive" WHS management system, with "clear and defined WHS roles and responsibilities".[1] 30. Mr Randall states the defendant "sincerely regrets that, at the local level, its system failed and that the risk of injury to [the student] came to pass."[2] He adds that the defendant "deeply regrets and apologises for the harm" caused.[3] 31. Mr Randall has used language of 'event', 'incident', and 'harm', but has not acknowledged the defendant committed a crime, or that the Student is a victim of this crime. 32. Mr Randall stated that the defendant provided support to the injured student and his family after the incident. The identified support was providing immediate first aid, calling an ambulance, and accompanying the victim to the local hospital. 33. Mr Randall does not explain why the family's request for psychological assistance for the victim was declined. 34. Mr Randall states that one of the defendant's specialist WHS officers (called a WHS Business Partner) visted the school's Principal in February 2021 to discuss some WHS matters. WHS officers provide some type of safety advice to allocated schools. While topics of the February 2021 discussions were not identified, they did not include compliance with the required inspection regime for playground equipment. 35. Mr Randall did not identify any process for checking the correct practical application of its inspection and maintenance policies for playgrounds. 36. Mr Randall provided a one page summary of the defendant's current Work Health Safety Management System. It refers to 21 'Key Risk' topics and the availability of more internal information. The key risks do not mention playground equipment. Possible provided categories that would cover playgrounds include 'falls from heights', 'outdoor learning environment', and 'machinery and equipment'. The document then lists six topics related to hazard controls under a heading of 'Key Risks support material'. They are: 'frequently asked questions', 'hazard alerts', 'posters and brochures', 'child accident prevention', and 'regional safety guidelines'. The final item on the list is 'playground equipment register'. An arrow then appears to link the listed support material to another section titled 'safety inspections', with 11 listed subjects. The list starts with 'playground (internal and external)', but does not include any other specific types of plant or machinery other than vehicles. 37. Mr Randall did not outline how the defendant discharges its central responsibilities for ensuring that all playgrounds, and new additions, are included in each site's inspection schedule, and for ensuring all required inspections take place at each site. 38. Mr Randall stated the school's playground equipment was immediately fenced off and later decomissioned. A new playground was installed at a cost of about $290,000. That followed the initial investigation by SafeWork SA, which also resulted in Prohibition Notices being issued against the use of a seesaw and a rocking motorbike. No other information was provided about the state of the equipment that was disposed of. 39. Mr Randall stated the offence also highlighted a range of training deficiencies which are being remedied by greater resource allocation to sites. The defendant has also since spent $475,000 on other identified WHS safety deficiencies.

1. The informant submits the objectively serious offending created an unmanaged risk, and the foreseeable occurrence of serious injury to a vulnerable child.
2. The risk was taken every time a student used the swing, which was frequently. The student population was also particularly vulnerable to falls from broken equipment, as each student in the special school had a type of disability.
3. Failure to manage the risk was significant because of the available information in the Australian Standard, the information provided by DIT, and the defendant's own stated policy.
4. The defendant had identified the hazard of broken playground equipment and risks of serious harm to children, but it failed to adopt and implement reasonably practicable hazard controls.
5. The defendant did not provide a safe school environment, through failing to take simple administrative steps to ensure the load bearing moving parts of the playground equipment were regularly inspected with documented results.
6. There was an available system for conducting annual preventative inspections of playgrounds, but the defendant failed for eight years to take the necessary steps to include the playground in that system, to inform and train site Principals about these tasks, and to check for site compliance.
7. The penalty should reflect the need for general deterrence of employers who regularly use plant.
8. There is also a need for specific deterrence of the defendant. That arises from its continuing obligation to arrange for appropriate comprehensive inspections of its hundreds of playgrounds. It must be constantly vigilant over maintaining a compliant inspection program in practice, and in taking all reasonably practical safety precautions to ensure the safety of its students.

1. The defendant accepts the risk of serious injury was foreseen.
2. The defendant accepts that realisation of this risk, i.e. by a student being seriously injured, was likely, but it was not inevitable due to the existence of the defendant's WHS section, and the possibility of annual comprehensive inspections within its system.
3. The defendant accepts it failed to ever record the playground in the annual inspection program, and it failed to ensure annual inspections occurred between installation and failure. It accepts that the particularised hazard control measures were all reasonably practicable.
4. The defendant submits the following factors support a reduced need for specific deterrence: the offence has no mental element, the defendant is of good character, the defendant was aware of and intended to address the risk, and the defendant is unlikely to reoffend due to an enhanced safety system.
5. The defendant's initial written submission at the sentencing hearing asserted its "profound contrition and remorse in relation to the incident",[4] but otherwise made no reference at all to the victim's experience as the injured victim of this crime. In oral submissions, the defendant only offered a verbal apology to the victim, who was not in court, for the "incident" but not for its criminal conduct.
6. The defendant later submitted there had been verbal communications between the school's Principal and the victim's father in 2021, to the effect of the Principal offering a verbal apology and financial support. The defendant accepts nothing was sent in writing, and accepts it declined the victim's request for professional psychological assistance.
7. On 18 October 2023, the victim's lawyer wrote to the defendant asking it to admit liability for his injuries. By response of 30 November 2023, the defendant declined to make any admission. It did however offer to facilitate a number of therapy sessions, provided it received a report.
8. The defendant did not voluntarily pay any reparations, restitution, or compensation to the victim, and it opposed the Court awarding any compensation to the victim because it did not wish to use any of its public funds for this purpose.
9. The defendant anticipated a common law claim for damages would be brought and preferred to take advantage of its insurance arrangements. The defendant's lawyers had put consideration of its liability for damages on hold until after the sentencing process concluded.
10. The defendant fully co-operated with the regulator. There have not been any similar subsequent incidents.
11. The defendant initially submitted it had not committed any prior safety offences, without disagreement from the informant. After the hearing, the defendant acknowledged a prior safety offence from 2005, described in sentencing reasons published as Patterson v Department of Education and Children's Services & Jones.[5] No submissions were made about this prior offence by either party.
12. The defendant submits its degree of criminality fits at the low end of a mid-range of severity.

1. As the circumstances of the offence suggested a right to compensation had arisen under s 124 of the Sentencing Act 2017, the Court had an obligation to give reasons for not making a compensation order, yet no submission had been made by the informant. Therefore, on 22 May 2025, I invited further submissions from the informant, and a responding submission from the defendant, on the following questions:
   • Has the prosecutor informed the victim, and his father, of [the victim's] right to seek compensation from this sentencing Court, in accordance with s 12 of the Victims of Crime Act and s 124 of the Sentencing Act?
   • If so, what was their response?
   • If not, will the prosecutor now do so?
   • If the prosecutor will now do so, and the victim does wish to apply for compensation, will the prosecutor assist the victim to do so? And if so, will any such assistance extend to marshalling and submitting to the defendant and Court currently available relevant medical and other documents, including photos of the scarring, regarding the injury, loss, and damage suffered by [the victim], and including records of the father's use of paid leave while caring for [the victim]?
2. The Court was promptly informed that an officer of SafeWork SA would make enquiries of the victim and his father about the topic of compensation. SafeWork SA's enquiries resulted in the victim indicating he did wish to apply to the sentencing Court for compensation for his losses. The victim then presented the relevant supporting evidence through his lawyer directly to the defendant, in the first instance.
3. The defendant responded by engaging with the victim and reaching an agreement that if the Court decided to make an order for interim compensation under s 124, appropriate amounts would be $40,000 for the victim's non-economic loss and $15,000 for his father's services based on the evidence available to the Court.
4. The defendant maintained its opposition to any compensation being awarded.
5. The defendant took two other steps. First, on 5 August 2025 it admitted liability for the victim's loss and damage caused by what it described as a breach of its "duty of care". Second, on 8 August 2025 the defendant's Chief Executive conveyed a written apology and acknowledgement of the victim's experience as described in his VIS. The letter explained the defendant's failings as "a lack of oversight and compliance with the Department's processes which led to a failure to conduct annual inspections of the playground...".
6. The defendant submitted its recent actions demonstrate its remorse and contrition. It cited its admission of liability for breach of its duty of care, the Chief Executive's apology, and the agreement about an appropriate amount of compensation if any was to be awarded over its opposition.
7. In response to its lack of any psychological assistance to the victim, the defendant submits it now appreciates a need to "clarify" its processes so that schools "may provide timely and appropriate support to students and the families of students injured on Department sites."
8. A late development was advised by the defendant on 30 September 2025. That is an in-principle settlement of the victim's rights to common law damages has been reached with the defendant. The defendant raised the question of whether the issue of s 124 compensation still needed addressing. No other submission was received.

1. The objective seriousness of this offence is high. The risk was of serious but not fatal injury. The victim's injuries are indicative of the type of harm the children using the swing were exposed to. While the extent of the neck condition is unknown, a serious neck or other type of head injury was quite possible.
2. The seriousness is aggravated by the defendant placing a particularly vulnerable group of disabled children at risk of serious injury over a long period.
3. The uncontrolled hazard of increasing wear to the load bearing shackle meant realisation of the risk was highly probable. I disagree with the defendant's submission that the existing system had any realistic chance of preventing the incident. That is because the defendant never included the playground in its annual inspection regime, and its policy overlooked the critical steps of practical implementation and enforcement. The defendant did not conduct any check or audit of its inspection policy during the many years of the swing's use.
4. The defendant's safety system failed at the centre, not at the local or school level. The school leaders had no control of, and were not responsible for, the Department's defective safety system. The fact that none of the three school leaders since 2017 knew about the comprehensive annual inspection requirement, together with the lack of any evidence of how they should have known, demonstrates the defendant's central failings.
5. Contrary to Mr Randall's assertion, the defendant did not have clearly defined WHS roles and responsibilities.[6] The existing safety policy was based on a fundamental misconception that the defendant could delegate its key responsibilities to site leaders, without a system for any checking. The defendant unrealistically wanted its Principals to liaise with DIT to know what should be added to DIT's inspection and maintenance schedule,[7] but without conveying this expectation to them. The defendant's existing safety policy for ensuring the inspection and maintenance of potentially dangerous playground equipment was little more than aspirational.
6. There were a number of secondary or contributory failures.
7. The defendant did not require inspection records to be made and kept. If inspection records had ever been checked, the failure to inspect would have been obvious.
8. The role of the school's allocated WHS officers who visited until early 2021 was so limited that none of the compliance failures were ever identified.
9. The defendant failed to act, for unexplained reasons, on prompts or warnings from DIT earlier in 2021 about the need for annual inspections of playgrounds.
10. The defendant also failed to ensure quarterly inspections were conducted that sighted the load bearing moving parts. The Australian Standard required monthly or quarterly inspections for these critical moving parts, not just annually. That failure is however subsumed by the defendant's major failure to ever conduct annual comprehensive inspections.
11. I agree with the informant that specific deterrence remains a significant sentencing factor. That is partly due to the defendant needing to maintain a correct understanding of the extent of its non-delegable WHS obligations as a PCBU operating schools with playgrounds. The defendant's continuing attribution of its safety failures to the local level raises a concern about the defendant correctly discharging its central obligations as the PCBU into the future. The defendant also needs to be vigilant that its administrative hazard controls remain effective in dynamic physical and staffing environments.
12. Another important consideration is how the defendant now ensures its compliance through checking, reviewing, or auditing. The Court only has Mr Randall's subjective assurance of future compliance, an existing one page document to which playground inspections has been added, and the absence of any similar later reported incidents to base this assessment on.
13. The prior safety offence is also a relevant consideration to the assessment of the need for specific deterrence. While that offence was in 2005, the sentencing took place in 2008, only four years before the playground was installed at the Port Augusta school. The 2005 offence also involved a central failure to manage a known hazard: children accessing roofs to retrieve balls. That offence arose from a teacher permitting a student to climb through an open window onto a roof to retrieve a ball. The student fell through the roofing material, suffering injury. The staff were not aware of any instruction or policy that prohibited accessing roofs to retrieve balls, which was a known practice. There was no departmental policy about the topic. This prior offence apparently did not prompt the defendant to review its safety systems and adopt a compliant centrally managed system for playground inspections between 2013 and 2021.
14. I reject the defendant's submission that the lack of a 'mental' element to its crime could justify a lighter sentence. The defendant's submission is based on a misconception about category 2 and 3 safety offences, noting the defendant is guilty of a category 2 offence against s 32. These apply when a PCBU has omitted or failed to discharge a positive legal duty to comply with the WHS Act's primary safety obligations. The mental elements of criminal negligence or recklessness are elements of a category 1 or s 31 offence, and if proven, a much higher penalty regime applies including with a possibility of imprisonment. If a hypothetical PCBU intended to cause harm to someone from its operations, the mainstream criminal law could apply. The defendant cannot legitimately minimise its criminal conduct in this way.
15. Similarly, any proof of a decision maker's subjective good intentions to fully comply with the WHS Act also misses the point that the primary safety obligation is to be objectively complied with. That is because subjective intentions do not ensure safety and prevent injury, so far as is reasonably practicable. In any event, the defendant has not produced any evidence of the decision making process of its senior officers, who were responsbile for approving and managing the inspection policy, and for responding to DIT's advice in 2021.
16. The defendant asserts it has a 'good character' which should also contribute to a lower penalty. While the defendant's official disregard of the victim's welfare for years together with its opposition to a compensation order are very difficult to reconcile with good character, this is an irrelevant subjective factor in the assessment of prospects for future compliance.
17. The penalty must also serve to generally deter other PCBU's from the two practices of delegating safety responsibilities to employees who are not in control of safety systems, and of overlooking the need for practical enforcement of policies about safety systems to the greatest extent that is reasonably practicable.
18. The welfare of the victim of this offence is another important issue in the sentencing process.
19. The legal context of the victim sustaining injury is significant. He was not injured by a lack of care, civil wrong or act of negligence. He was injured by the defendant's criminal conduct. This defendant bears the same level of criminal liability as do all private sector PCBU's. The defendant faces accountability for the effects of its conduct in a criminal court: not in a civil court or by a discipline or administrative process. The victim is entitled to be treated and compensated as a victim of a serious crime. He has already waited more than four years since age 16 for restitution and reparations.
20. The defendant's considered refusal to pay any compensation to its victim was a poor response to its criminal conduct. The defendant's pursuit of self-interest through reliance on insurance was more important than restitution and reparation for its victim. Even then, the defendant's insurer refused to admit liability until after the Court raised the question of s 124 compensation. To that point, the defendant demonstrated very little regard for its victim's welfare, and thereby, a lack of contrition.
21. The issue of s 124 compensation is now moot. I accept the victim has now reached an agreement with the defendant as to his full rights to damages for his losses, with this agreement subsuming the right to summary or interim compensation under s 124.
22. But for this agreement I would have made an award of compensation in the agreed amount. I had concluded that the circumstances of the victim's known loss and damage did entitle him to an interim award of compensation and s 124 provided an appropriate process in this case.
23. Regarding penalty, I have taken account of the sentencing decisions cited by both counsel. While each case is different, they offer some guidance for the goal of consistency of sentencing.
24. I disagree however with the defendant's submission that the decision of Campbell v Woolworths Group Limited[8] concerned a similar serious failure to inspect and maintain equipment. That case involved a 2m high bakery trolley which fell onto an employee after its wheels jammed, causing multiple injuries and broken bones. It was designed for display but was later used as a trolly as it had small wheels. The hazard of the trolley falling due to jammed wheels was not identified. The court found the hazard to be a blind spot of an otherwise compliant safety system. The court imposed a penalty based on a starting point of $120,000. Woolworths also voluntarily paid substantial reparations to the employee victim and made a personal apology to her.
25. I consider the defendant's offending to be much more serious in the present case. The offence occurred due to a fundamental failure to implement and enforce a policy about having annual inspections of known serious hazards to particularly vulnerable children, and after not responding to warnings received at a high level.
26. The next issue is the defendant's claimed entitlement to a reduction of 40% based on the timing of the guilty plea. Section 39 of the Sentencing Act 2017 provides for reductions of penalties of up to 40% in certain circumstances.
27. Because the defendant's guilty plea was entered within four weeks of the charge being refiled in late 2024, a possible 40% reduction may be granted to the fine that would otherwise have been imposed.
28. The circumstances of the guilty plea being entered so long after the offence are unusual. Without the charge for the s 32 offence being refiled, no reduction of more than 10% could have been granted. Refiling the charge was not the only way the parties could have co-operated regarding the withdrawal of certain particulars. That is because the admitted key allegation of failing to maintain the swing in a safe condition so far as was reasonably practicable, due to no annual comprehensive inspections, was included in the initial particulars.
29. Guilt for this fundamental inspection system failure over many years, before Mr Holden was appointed, could have been admitted to the Court and to the school's community long before the charge was refiled. A timely admission might well have been meaningful to the victim and his family, and to Mr Holden who had been wrongly blamed by the defendant for its own management failures. A sophisticated defendant that understood its failings and was genuinely contrite and remorseful would have admitted its guilt at an earlier opportunity.
30. Another relevant factor to the assessment of contrition is the defendant's continuing opposition to its victim receiving an award of interim compensation by this sentencing Court. By this self-interested stance, the defendant avoided accepting full responsibility for the serious harm its offending caused to a vulnerable child placed in its care.
31. The defendant's initial couched expressions of remorse and contrition to the Court were not communicated to the victim, and were made in a context of the defendant expressly declining to admit liability for its victim's loss and damage. I place no weight on the reported initial utterance of sorry and offer of financial support by Mr Holden to the victim's father. It was not recalled by the father, was not put in writing, and the offer was meaningless given the subsequent refusal to provide psychological assistance and opposition to paying any reparations.
32. The defendant's subsequent written apology and liability for loss and damage are of some value, but much diminished by the intervening four years. The apology for the offence is further diminished by its avoidance of accepting central responsibility for the offence.
33. The defendant's poor regard for the welfare of its victim, its performative remorse in the sentencing hearing, and its continuing opposition to compensation being awarded by the sentencing Court would all have to be overlooked if the defendant was to be rewarded for the technical timing of its admission of guilt by a 40% reduction in penalty. I consider that would be contrary to the interests of justice.
34. I accept the guilty plea has some limited utilitarian value. The defendant has acknowledged its guilt and has expressed some remorse and contrition to the Court and to the victim. In these circumstances a reduction of 10% is the most that can be justified.
35. Having regard to all the circumstances and the above considerations, I start with a notional fine of $250,000. After reduction by 10%, I impose a fine of $225,000.

1. The Department for Education is to pay a fine of $225,000.
2. A conviction will be recorded against the Department for Education for the offence against s 32 of the Work Health and Safety Act 2012.
3. I order the Department for Education to pay a contribution to the Informant's legal costs of $2,310, and a Victim of Crime Levy of $437.

[4] Defendant's written submissions [24].

[5] [2008] SAIRC 68.

[8] [2021] SAET 53.