A Queensland tour company fined $250,000 after two Japanese students drowned during a guided group tour on K’gari (Fraser Island) is disputing it was solely culpable for the tragedy.
Huckleberry Australia pleaded guilty in February to failing to comply with its work health and safety duty after the two 16-year-old international students drowned on its watch at the popular Lake McKenzie in March 2019.
The two boys, Taiki Mizuno and Shinnosuke Kimura, from Japan’s Kanagawa University High School, were among a group of 15 students and two teachers staying at the Kingfisher Bay Resort as part of an ecotour exchange program to Australia.
The guided tour included a trip to the Lake McKenzie, where signs have been erected indicating swimming is ill-advised due to the depth of the water beyond the shoreline.
The freshwater lake is known to be about 6m deep.
The students were allowed to swim in the water unsupervised.
Both boys were discovered missing a short time later when the group went to take a photograph.
Their bodies were found in the lake by police divers the following morning.
The families of the two teenagers expressed their heartbreak over the tragic deaths by writing to Mr Costanzo during the original sentence.
Hiroshi Mizuno, father of Taiki Mizuno, said he charged his son’s phone everyday so that the battery did not go dead.
He said his son was gentle, polite, serious and followed rules.
“Taiki wanted to become a doctor one day because of the painful experience at age 13 of losing his mother to cancer and he studied hard to achieve that goal, having a strong desire to save as many people as possible from cancer, ” according to court documents seen by NCA NewsWire.
Mr Mizuno said he regretted trusting the school and apologises to his son every day because as a father he was not able to save his son’s life.
Shinnosuke Kimura’s brother, Taro Kimura, submitted a victim impact statement to the court in February.
“Losing your only sibling is so hard and can’t be expressed in words,” the statement read.
“Why does everyone in my family, including myself, have to spend every day without hope and why do we have to continue living like this?
“I think about this a lot, but I still haven’t found an answer.”
While Huckleberry Australia accepts the sentence, it’s now appealing the penalty imposed of $250,000, instead recommending a fine of $80,000 to $100,000 be ordered.
The matter returned to Brisbane’s Court of Appeal this week, where the applicant’s barrister, David Keane KC, told the court the $250,000 penalty was “excessive”.
Mr Keane said presiding magistrate John Costanzo, who made the original orders in February, had failed to understand that Huckleberry Australia were not responsible for controlling the student actions.
He said the students’ care ultimately was the responsibility of their teachers.
Mr Keane said while Huckleberry Australia did accept that it should have had an instruction to prohibit swimming, it “did not have the authority to prohibit students from swimming”.
“We were in a position where we should have provided an instruction that swimming shouldn’t occur. but that instruction is not one we could compel them to adhere to but rather a statement of information,” Mr Keane said.
“At all times the students were in the care of the high school, they weren’t put into the care of our company.
“We are a company that was subcontracted to the tour group which was itself engaged to assist in the organisation of the tour.
“We effectively acted as a booking and interpretation agent and notably we are not charged with a failure to supervise.”
The court was told Huckleberry Australia has now implemented an “uniform swimming policy” since the deaths for all future tours.
Mr Keane said the court must accept his client’s only failure was not providing information about the dangerous swimming conditions of freshwater.
The court was told one of the teachers supervising the student’s had also been charged but police haven’t been able to serve him as he’s since “returned to Japan”.
Work Health and Safety Prosecutor Ben Power KC said Mr Costanzo had considered the “failures of others” when handing down his original sentence.
“The contention seems to be that in fact the children were not exposed to risk because if they had been (instruction) through their teachers that swimming was prohibited in lakes and beaches then that would have been ignored,” Mr Power said.
“They had a duty of care and a failure has led to all of the children to a risk of loss of life or causation for grievous bodily harm.”
Mr Power said the $250,000 penalty was “not manifestly excessive”.
The matter was adjourned for a reserved decision.