On 27 September 2013, Justice Michael John Walton of the Industrial Court of NSW handed down his judgement. The decision summary states:
(1) The defendant is convicted of the offence as charged.
(2) The defendant is fined the sum of $115,000 with a moiety to the prosecutor.
(3) The Court further orders that the defendant shall pay the costs of the prosecutor for these proceedings as agreed or, in default, as assessed.
On Track Community Programs was convicted around the charge of having failed to obtain any proper Risk Assessment on the client that was release from the mental health clinic. They had also failed in obtaining the discharge summary of the patient that was available to them when he was released from the Clinic just three (3) days prior to his committing the murder. The discharge summary noted that there was a moderate to high risk of violence when David was manic or psychotic.
The above failures meant that staff were not armed with the proper information about the mental health, psychotic states and violent behaviour of the patient. The judge highlighted the gravity of the offence and based his conviction and fine on the organisation’s failure to prohibit staff from interacting with the client until the “all clear” was given. Whilst it is accepted that there are limits to eliminating the risk of violence when working with the mentally ill, it was possible to assess risk factors and to manage them by a more comprehensive and formal risk assessment and risk management plan. On Track’s home visiting policies also did not require staff to be accompanied. It is an obligation of On Track under the OH&S Act to control and minimise exposure to risks.
In the immediate period following the murder, On Track responded by making changes to their home visiting policies. The judge indicated that these steps taken revealed in clear terms the simple and decisive remedial steps which may have been taken by On Track to abate the risk prior to the incident. In addition, granting that On Track did have some policies in place, they were considered inadequate. Any relevant policies to deal with ‘aggressive’ or ‘violent’ patients that On Track Community Programs did have, did not apply to employees of their “Refuge” program where Michael was working that night.
The court has fined On Track Community Programs $115,000. The amount whilst considered average is significant as community organisations are often viewed as being unable to afford the fines imposed and it would deplete funds from the services they deliver. However, the court considered On Track had sufficient funds to pay the fine and also considered the gravity of the offence. The court also indicated “it is necessary to ensure that the penalty properly reflects the need for general deterrence so as to draw attention … in particular [to] those dealing with mentally ill and vulnerable members of society”.
The penalty imposed by the court is in addition to the costs payable by On Track Community Programs to the prosecutor (indicated by WorkCover to be approximately $70,000) as well as their own significant legal costs (10s of thousands of dollars at least) that was mounted to defend the prosecution.