Kellyville Ridge’s Berry Patch Preschool and owner Helen Jacobs appeal failure to protect children conviction

The boss of a preschool found guilty of failing to protect children from harm will argue the facility was adequately supervised on the day a baby was found unresponsive in a cot and later died.

Left: 16-month-old Arianna Maragol was found unresponsive in her cot and (right) Berry Patch Preschool owner Helen Jacobs.

The boss of a northwest Sydney preschool found guilty of failing to protect children from harm will argue the facility was adequately supervised and had taken “all reasonable precautions” on the day a baby was found unresponsive in a cot and later died.

On August 24, 2018, 16-month-old Arianna Maragol was found unresponsive at Berry Patch Preschool in Kellyville Ridge after being left unchecked for three hours. She later died in hospital.

In November 2022, preschool owner Helen Elizabeth Jacobs was convicted and found guilty of three counts of not adequately supervising children and three counts of not protecting children from harm/hazard – nominated supervisor.

The charges did not relate to responsibility for the baby’s death, which is the subject of an inquest.

A verdict against the centre, which faced 10 criminal charges, was also delivered. It was guilty of all but three charges. The preschool and Jacobs were fined more than $140,000.

Helen Jacobs (front) leaves Downing Centre Local Court with Melinda Brown (back) in 2022 after Jacobs was found guilty of failing to provide adequate supervision.

This week, an appeal was part-heard at the Sydney District Court where Senior Counsel John Agius argued Jacobs and the facility had satisfied their legal requirements under current Australian legislation and educational guidelines.

It was submitted the preschool, operating as an educational care facility, does not come under the same legislative requirements of a family day care service.

Mr Agius told the court under those requirements, Jacobs was not required to physically supervise children while a day-to-day service provider was also present, and was not expected to exercise the same level of control as a family day care service.

“It’s just not possible for a nominated supervisor to physically follow around every employed person to ensure that they are complying with all the requirements of an educational care service,” he told the court on Tuesday.

Arianna Maragol died in 2018. Picture: Sam Ruttyn

Mr Agius submitted there were no requirements or mandates for nominated supervisors to “physically touch” babies or to “observe breathing” when conducting checks.

He told the court the facility observed procedures outlined by Red Nose Australia – the leading standard for care of children under 12 months – and had passed service inspections by The Australian Children’s Education and Care Quality Authority.

“When one looks at all the different things there is ample evidence to satisfy that the supervision was adequate and that every reasonable precaution was taken,” he said.

On Wednesday, he told the court Berry Patch demonstrated continual approach to education and re-educating staff but there was a lack of advice about supervising children in cots.

“So the absence of cot checks – or inaccuracies about cot checks – just doesn’t get the prosecution over the line,’’ he said.

He added if children were regularly checked on breathing patterns or skin colour, there was no evidence they would benefit from such checks.

However, onthe first day of the hearing barristerKenneth Averrem, representing the NSW Education Department, said regardless of the differences, Jacobs and Berry Patch Preschool were convicted based on “factual findings” of CCTV footage – the content of which are not currently in dispute.

The hearing continues.