Citation: SafeWork NSW v SNAP Programs Limited and State of New South Wales (Department of Communities and Justice) [2021] NSWDC 259
Court: District Court of New South Wales
Date: 18 June 2021
Judge: Scotting DCJ
Background
This decision concerns the sentencing of two defendants following the death of Riley Shortland, a child in out-of-home care, and serious injury to a support worker, Rachel Martin. Riley was a nine-year-old boy with Autism Spectrum Disorder and global developmental delay who was in the full-time foster care of a private carer. He had a documented history of attempting to escape from his car seat while vehicles were in motion, and his behavioural support plan required a Houdini strap and a second carer seated beside him during all vehicle travel.
SNAP Programs Limited (SNAP) was a funded service provider contracted by the Department of Family and Community Services (FACS, now the Department of Communities and Justice) to deliver out-of-home care and respite services. FACS held statutory responsibility for Riley's case management at the relevant time, having taken it back from a departing service provider. When Riley's case file was transferred to FACS, it included documentation of his vehicle safety needs, but that file was not reviewed or communicated to SNAP before Riley was placed in SNAP's care for a respite placement.
During a vehicle journey while in SNAP's care, Riley escaped from his restraint. The incident resulted in Riley's death and exposed support workers Rachel Martin, Brooke Houlison, and Karin Ford to a risk of death or serious injury. Rachel Martin, who was eighteen weeks pregnant at the time, suffered serious harm. Both SNAP and FACS pleaded guilty to offences under the Work Health and Safety Act 2011.
Legal Issues
- Whether SNAP breached its duty as a person conducting a business or undertaking under section 19(1) of the Work Health and Safety Act 2011, exposing workers to a risk of death or serious injury.
- Whether SNAP also breached its section 19(2) duty, exposing Riley Shortland (a person other than a worker) to a risk of death or serious injury.
- Whether FACS breached its section 19(2) duty, exposing both the workers and Riley to a risk of death or serious injury.
- What penalties were appropriate for each defendant, having regard to objective seriousness, mitigating factors, victim impact, and the totality principle.
Decision
Both defendants were convicted on their guilty pleas. The court assessed the objective seriousness of each offence and weighed the mitigating factors, including the absence of prior convictions, cooperation with the investigation, expressions of remorse, and the guilty pleas. Under established sentencing principles, a guilty plea generally attracts a discount, and Scotting DCJ applied a 25% reduction to all fines in recognition of the pleas.
SNAP was sentenced on two offences. The section 19(1) offence, which concerned the exposure of workers to risk, was treated as the more serious of SNAP's two charges because it involved a greater number of people exposed to harm. Applying the totality principle (which requires a court to ensure the combined sentence reflects the overall criminality rather than simply stacking penalties), the fine for the section 19(2) offence was reduced to avoid a disproportionate total.
FACS's single offence under section 19(2) was assessed as warranting a higher base fine than either of SNAP's individual offences. The court took into account victim impact statements from Riley's mother Amanda Taylor, his foster carer Fiona Martin, and Rachel Martin's family members, treating the impact on those families as a form of harm to the community relevant to penalty.
The maximum penalty for each offence under section 32 of the Work Health and Safety Act 2011 is a fine of $1.5 million. The fines ultimately imposed were well below that maximum, reflecting the mitigating factors and the defendants' pleas. Fifty per cent of each fine was directed to be paid to the prosecutor (SafeWork NSW) under the Fines Act 1996.
Orders Made
SNAP Programs Limited:
- Convicted of two offences under section 32 of the Work Health and Safety Act 2011.
- Fined $60,000 for the section 19(1) offence (base fine of $80,000, reduced by 25% for guilty plea).
- Fined $30,000 for the section 19(2) offence (base fine of $40,000, reduced by 25% for guilty plea), reflecting the totality principle.
- Total fines: $90,000.
- Ordered to pay prosecutor's costs of $75,000.
- 50% of each fine directed to be paid to the prosecutor under section 122(2) of the Fines Act 1996.
State of New South Wales (Department of Communities and Justice):
- Convicted of one offence under section 32 of the Work Health and Safety Act 2011.
- Fined $150,000 (base fine of $200,000, reduced by 25% for guilty plea).
- Ordered to pay prosecutor's costs of $70,000.
- 50% of the fine directed to be paid to the prosecutor under section 122(2) of the Fines Act 1996.
Key Takeaways
- Both a private funded service provider and a government department can be held concurrently liable under the Work Health and Safety Act 2011 for exposing the same individuals to risk, where their respective duties as persons conducting a business or undertaking intersect.
- The failure to review and communicate a child's documented behavioural and safety needs when transferring case management was central to the finding of liability against FACS, illustrating how administrative failures can ground WHS prosecutions.
- A 25% discount for a guilty plea was applied across all three offences, consistent with the approach in R v Thomson & Houlton (2000) 49 NSWLR 383 and related authorities.
- Victim impact statements, while not directly relevant to traditional sentencing purposes in some contexts, were accepted as relevant to penalty to the extent that the deaths and injuries represented harm to the community.
- Under the totality principle, where multiple offences arise from the same incident, the court will adjust individual penalties to ensure the combined outcome is a just and proportionate reflection of the overall criminal conduct.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 19(1), 19(2), 32
- Children and Young Persons (Care and Protection) Act 1998 (NSW), s 141
- Children and Young Persons (Care and Protection) Regulation 2012 (NSW), cls 32, 33
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Fines Act 1996 (NSW), s 122(2)
Cases:
- Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
- R v Borkowski (2009) 195 A Crim R 1
- R v Thomson & Houlton (2000) 49 NSWLR 383
- R v Youkhana [2004] NSWCCA 412