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

The boss of a northwest Sydney preschool found guilty of failing to protect children from harm, after a baby was found unresponsive in a cot and later died, has successfully appealed a conviction.

Arianna Maragol tragically died after being found unresponsive at The Berry Patch Preschool in August 2018 when Helen Elizabeth Jacobs was the owner.

The boss of a northwest Sydney preschool has successfully appealed a conviction for failing to protect children from harm, after a baby was found unresponsive in a cot and later died.

The case of Kellyville Ridge Berry Patch Preschool and its owner Helen Jacobs returned to Campbelltown District Court on Thursday as Judge Ross Hudson handed down judgment in the appeal.

On August 24, 2018, 16-month-old Arianna Maragol was found unresponsive in the preschool after being left unchecked for three hours. She later died in hospital.

In November 2022, 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 centre, which faced 10 criminal charges, was found guilty of all but three charges. The preschool and Jacobs were fined more than $140,000.

Arianna Maragol died when she was 16 months old.

Neither Jacobs nor the preschool were charged in relation to Arianna’s death.

During the appeal hearings, prosecuting barrister Kenneth Averre told the court the preschool’s reliance on CCTV and audio monitoring of children, which included multiple babies besides Arianna, was not sufficient supervision.

Mr Averre had argued “cot checks” should be made every 10 minutes by a qualified educator or a nominated supervisor, according to the 2018 standards of excellence set out by the Australian Children’s Education and Care Quality Authority (ACECQA).

The court was previously told these cot checks at the Kellyville Ridge facility were conducted mostly through CCTV cameras, with educators only physically entering the room if a baby was fussy or awake.

However, the defence had argued between the time the preschool first opened in 2009 and 2018, the ACECQA or Red Nose Australia – the leading standard on childcare – had no requirement to physically check if sleeping babies were breathing.

Helen Jacobs.

The defence argued they had staff formally trained in safe sleep practices while staff employment contracts outlined requirements for staff to follow policies and national regulations.

In handing down his judgment, Judge Hudson found the prosecution failed to prove beyond reasonable doubt of Jacobs and the preschool’s guilt.

“In considering this appeal, my task is to determine whether the evidence was sufficient in nature and quality to eliminate any reasonable doubt the appellants are guilty of each offence,” Judge Hudson said.

“I am not satisfied with a reasonable doubt that the appellants are guilty of each of the offences of the subject of the appeal.”