Citation: SafeWork NSW v Marist Youth Care Limited [2024] NSWDC 74
Court: District Court of New South Wales
Date: 11 March 2024
Judge: Scotting DCJ
Background
The defendant, a not-for-profit charitable organisation operating residential care homes for young people under state supervision, was prosecuted under the Work Health and Safety Act 2011 (NSW). The organisation had contracted with the Department of Communities and Justice in 2018 to deliver an Intensive Therapeutic Care model across 12 homes in New South Wales. Two female direct care workers, referred to as Samantha Sosa and NN, were rostered at one of those homes in Moorebank.
The prosecution arose from the organisation's failure to comply with its primary health and safety duty under s 19(1) of the Act, which exposed the two workers to a risk of serious injury or illness. The case centred on the defendant's management of a high-needs resident (referred to by the pseudonym Liam), who had a known history of violent and aggressive behaviour, and the adequacy of the safeguards the organisation put in place to protect its workers.
The defendant pleaded guilty. The sentencing hearing proceeded over three days, with the parties tendering an agreed statement of facts running to 225 paragraphs, three volumes of documents, and an 84-page expert psychological report.
Legal Issues
- What was the appropriate fine under s 32 of the Work Health and Safety Act 2011 (NSW), having regard to the maximum penalty of $1,500,000?
- What was the objective seriousness of the offence?
- What aggravating and mitigating factors applied under the Crimes (Sentencing Procedure) Act 1999 (NSW)?
- What discount should be applied to reflect the utilitarian value of the guilty plea?
- Whether psychological injury to the workers supported the aggravating factor of actual harm exceeding ordinary expectations for the offence.
Decision
Scotting DCJ assessed the offence as being in the mid-range of objective seriousness. The defendant accepted that a risk existed and had provided some relevant training, but the failures in its systems, oversight, and communication about the resident's background were meaningful. The defendant had struggled from the outset with unrealistic contractual timeframes, inadequate staff training, and insufficient information management practices.
On aggravating factors, the court found that the psychological injuries sustained by Ms Sosa and NN were sufficient to establish that the harm was greater than may ordinarily be expected for an offence of this type. The offence requires only the creation of a risk, not actual injury, so the presence of psychological harm elevated the seriousness above the baseline.
The mitigating factors were substantial. The defendant had no prior convictions, had operated since 1994, demonstrated genuine remorse through its CEO, and had taken concrete steps to address the organisational failures. The court accepted that it had good prospects of rehabilitation. Its status as a charitable NGO providing government-funded services to vulnerable young people was noted, though it did not operate as a formal sentencing discount.
Before applying the plea discount, the court assessed the appropriate fine at $400,000. A 25% discount was applied for the guilty plea, consistent with the principles in R v Thomson & Houlton and R v Borkowski, reflecting both the utilitarian value of the plea and its indication of remorse. The court also commented critically on the conduct of the sentencing proceedings, noting that the volume and complexity of material tendered by the parties risked breach of the De Simoni principle, under which a sentencing court must not take into account uncharged facts that aggravate the offence.
Orders Made
- The defendant was convicted of the offence under s 32 of the Work Health and Safety Act 2011 (NSW).
- A fine of $300,000 was imposed (reduced from $400,000 by a 25% guilty plea discount).
- The defendant was ordered to pay the prosecutor's agreed costs of $140,000.
- Pursuant to s 122(2) of the Fines Act 1996, 50% of the fine is to be paid to the prosecutor.
Key Takeaways
- Under s 32 of the Work Health and Safety Act 2011 (NSW), a corporation that fails to comply with its primary duty under s 19(1) and thereby exposes workers to a risk of serious injury faces a maximum fine of $1,500,000; the District Court imposed $300,000 after mitigation and a 25% plea discount.
- Psychological injury suffered by workers, even though the offence requires only the creation of a risk rather than actual harm, can satisfy the aggravating factor that harm was greater than ordinarily expected for the offence type.
- A 25% discount for a guilty plea was applied, consistent with established principles in R v Thomson & Houlton and R v Borkowski, with the plea treated as both reducing the need for a contested hearing and evidencing remorse.
- Scotting DCJ issued a pointed criticism of the parties' approach to the sentencing proceedings, warning that excessive documentary tendering and contested expert evidence risk violating the De Simoni principle by placing before the court uncharged matters that could improperly aggravate the sentence.
- The court declined to act on significant portions of the prosecution's expert psychological report, finding parts overstated, irrelevant to the pleaded risk, or based on an improper conflation of unproven allegations with proven convictions.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 19(1), 32
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(3)(e), (h), (i), (k); s 22
- Fines Act 1996 (NSW), s 122(2)
- Courts Suppression and Non-publication Orders Act 2010 (NSW), s 8(1)(c) and (d)
Cases
- Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
- GAS v The Queen (2004) 217 CLR 198
- R v Bakewell, NSWCCA (unreported, 27 June 1996)
- R v Borkowski (2009) 195 A Crim R 1
- R v Crowley [2004] NSWCCA 256
- R v FV [2006] NSWCCA 237
- R v H [2005] NSWCCA 282
- R v Olbrich (1999) 199 CLR 270
- R v Thomson & Houlton (2000) 49 NSWLR 383
- R v Youkhana [2004] NSWCCA 412
- Weininger v The Queen (2003) 212 CLR 629