Well now! Look Who’s Guilty?

Well now! Look Who’s Guilty?

After the constant mantra of “It was his fault, he shouldn’t have gone there” by On Track Community Programs, WorkCover NSW after a thorough investigation had found the organisation to be guilty of failing to ensure a safe work environment for their staff under the Occupational Health and Safety Act 2000. Two years to the day of Michael’s passing, WorkCover served On Track Community Programs a summons to appear in the Industrial Court of NSW.  It would be another 20 months after that date before they would finally come forward and admit their guilt. At each scheduled court Directions Hearing, the organisation sought adjournments and gave no indication if they would plead either guilty or not-guilty to the charges brought against them. As On Track Community Programs failed to plead either way and continued seeking adjournments, the court deemed their fourth request for an adjournment to be a plea of not-guilty and proceeded to set a date for the Defence Hearing in court which would have required the organisation to defend the claim of not-guilty.

A week from the date of the Defence Hearing set by the court and knowing they had stretched the court’s patience, On Track Community Programs came forward and pleaded guilty to an amended (lesser) charge and attempted to trivialise the gravity of the charge by their application for a Section 10 of the Crimes (Sentencing Procedure) Act 1999. That is, to have no conviction recorded against the name of the organisation and to have no monetary penalty imposed. A Section 10 is often sought by defendants of trivial crimes, for example, speeding fines.

At the final Defence Hearing in early June 2013, the defence lawyer argued for over two hours to lay blame squarely at the feet of the North Coast Area Health Service (NCAHS) as well as the Community Mental Health service. However, the contradiction in this is that he also claimed that all three organisations (the third being On Track Community Programs) had a share in the care of the mental health patient – sadly, that share did not appear to extend to any responsibility by On Track Community Programs for the events in question. The defence lawyer repeatedly emphasised that the North Coast Area Health Service was totally to blame for releasing the perpetrator from their facility rather than acknowledge that On Track Community Programs itself had a duty of care to request a Risk Assessment and protect their staff from a client that had the potential to be violent.

The defence lawyer continued to push blame onto the victim as well, indicating that there was no reason for Michael’s presence at the unit of the mental health patient. Yet at the same time, he acknowledged that Michael had been rostered to work at the Refuge that night and had responsibility for the clients of the refuge, which included the girlfriend who was at the unit of the murderer. The defence lawyer had failed to indicate that the possibility for Michael’s presence at the unit may have had something to do with the fact that he had a duty of care towards the client of the Refuge and might have been concerned for her welfare.

In an attempt to reduce or avoid paying any penalty altogether, On Track Community Programs when initially requested, failed to provide full and proper records of their financial statements even though they were available, but instead “suggested that they were expected to suffer a loss in the upcoming tax year.” However, the judge noted that “in reality, based upon records produced by the defendant (upon cross-examination), there could not be (and was not) any issue of financial incapacity to pay or lack of financial means”. On Track in its 2012 Annual Report proudly claim an increasing grant revenue and an asset value of 3.732 million Australian dollars.

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