On 26 February, a teacher was sentenced in the Hervey Bay Magistrates Court for breaching section 32 of the Work Health and Safety Act 2011 (‘the Act’). The defendant pleaded guilty to failing to comply with his health and safety duty as a worker pursuant to section 28 of the Act, thereby exposing individuals to the risk of death or serious injury.

On 29 March 2019, whilst on a guided tour of K’gari (Fraser Island), two 16 year-old students drowned in Lake McKenzie, a freshwater lake on the island.

The two students were part of a group of fifteen students from a high school in Japan (‘the School’). In about May 2018, the School commenced preparations for the group of students to travel to Australia in March 2019 for a study tour. The defendant was a teacher employed by the School and was in charge of the overseas study program.

The School contracted the services of a Japanese tour company to assist with organisation of the trip to Australia. The Japanese company subsequently subcontracted aspects of the organisation of the study tour to an Australian tour company.

A number of pre-trip meetings were held by the School (in Japan) and attended by the participating students and their parents. These meetings were run by the defendant, with other School staff present.

As a part of their visit to Australia, the Australian tour company booked a trip for the School group to K’gari from 28 to 30 March 2019. This booking included, amongst other things, a full day 4WD tour, known as the “Beauty Spots” tour.

On 29 Mach 2019, at approximately 8 am, the students departed a resort on the island to go on the “Beauty Spots” tour. At about 2:37 pm the tour bus arrived at the carpark near Lake McKenzie and the students departed.

The group of students walked to the lake and left their belongings on the sand, with the defendant. The students all entered the water.

At about 2:49 pm the adults realised that two of the students were missing and commenced a search. The defendant and others continued to search around the lake and police were called to assist. The bodies of the two students were located in the lake by police divers the following morning.

Magistrate McGarvie, in sentencing the defendant, had regard to the defendant’s timely plea of guilty and reduced the penalty that otherwise would have been imposed. Her Honour also took into account the defendant’s antecedence and noted that he was currently 61 years of age with no previous convictions.

Her Honour had regard to the purposes of sentencing the defendant and considered that the weight of authority supports general deterrence and community denunciation as being the primary sentencing considerations in matters of this nature.

Her Honour described the offending as serious, which was reflected in the maximum penalty. Her Honour noted that the defendant was a teacher with more than 30 years experience and was in a position of trust as the senior teacher accompanying the tour. Her Honour remarked that the defendant could easily have stopped the children from swimming or could have adequately supervised them, but failed to do so.

Her Honour described the defendant’s culpability as high given the obviousness of the risk and the potential consequences of it. Her Honour remarked that the consequences were tragically demonstrated by the death of two young people.

Her Honour took into account the Victim Impact Statements provided by the families of the children. Her Honour remarked that they fairly represent the experiences of parents that have lost their children and that palpable grief leaped from the pages. Her Honour remarked that there was no reparation that could be made to make up for their loss and that any fine imposed did not attempt to equate a dollar value to the loss of a child.

Her Honour had regard to the letter of apology that the defendant read to the Court and considered it an expression of genuine remorse and regret. Her Honour also took into account the fact that the defendant had been undergoing treatment for depression, post-traumatic stress disorder and suicidal ideation following the incident. Her Honour took into account the defendant’s capacity to pay a fine and noted that there was some risk that the proceedings would destabilise his ongoing employment.

Having regard to all matters, as well as the comparable decisions referred to by the parties, Magistrate McGarvie convicted and fined the defendant $55,000 and exercised her discretion not to record a conviction.

OWHSP contact: enquiries@owhsp.qld.gov.au