Director of Public Prosecutions v Onkar Group Pty Ltd
[2025] VCC 1382
•11 September 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-25-00473; CR-25-00471
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ONKAR GROUP PTY LTD and MANINDER NAGI |
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JUDGE: | Holding | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 June 2025, 4 August 2025 | |
DATE OF SENTENCE: | 11 September 2025 | |
CASE MAY BE CITED AS: | DPP v Onkar Group Pty Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 1382 | |
REASONS FOR SENTENCE
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Subject:- CRIMINAL LAW -
Catchwords: Occupational Health and Safety – Recklessly placing a person at a workplace in danger of serious injury – failing to provide and maintain a safe working environment – failing to ensure persons other than employees were not exposed to risks to their health or safety – failure to take reasonable care.
Legislation Cited: Occupational Health and Safety Act 2004 (Vic); Sentencing Act 1991 (Vic).
Cases Cited:Dennis Jones Engineering Pty Ltd v R [2025] VSCA 76; Orbit Drilling Pty Ltd v The Queen (2012) 35 VR 399; Di Tonto & Am Design and Construction Pty Ltd v R [2018] VSCA 312; DPP v Bedford and Anor [2023] VCC 1047; Holmes v R E Spence & Co Pty Ltd (1992) 5 VIR 199; DPP v Amcor Packaging Australia Pty Ltd (2005) 11 VR 557; DPP v LH Holding Management Pty Ltd (2025) 339 IR 209; DPP v Laith Hanna [2025] VSCA 75.
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms K. Argiropoulos SC Mr L. Crosbie | Office of Public Prosecutions |
| For ONKAR GROUP PTY LTD For NAGI, Maninder | Mr D. Connors Ms M. Edwards | Cangelosi Logan Solicitors Cangelosi Logan Solicitors |
HIS HONOUR:
1On 17 August 2022, Mr Khashee, had completed a nights work making deliveries of baked goods. Mr Khashee was driving towards his home along the Goulburn Valley Highway, when the van he was driving drifted into the lane of oncoming traffic and collided with a truck. Fortunately, the truck driver was not injured. Tragically, Mr Khashee died as a result of the collision. He was 27 years old when he died.
2The company that employed Mr Khashee, Onkar Group Pty Ltd (Onkar), and the sole director of that company Mr Nagi, have pleaded guilty to offences contrary to the Occupational Health and Safety (OHS) Act 2004 (the Act).
3Onkar has pleaded guilty to three charges:
·Charge 1: Recklessly placing a person at a workplace in danger of serious injury.[1]
·Charge 2: Failing to provide and maintain a safe working environment for employees.
·Charge 3: Failing to ensure so far as was reasonably practicable that persons other than employees were not exposed to a risk to their health and safety.[2]
[1] A workplace under s 5 pf OHS Act means a place, whether or not in a building or structure, where employees or self-employed persons work. It therefore includes a driver employed to drive on a public highway. The maximum penalty for an offence under s 32 of the Act is 20,000 penalty units for a body corporate. At the commencement of the offending, the value of a penalty unit was $184.92. This equates to a maximum fine of $3,698,400 against Onkar in relation to charge 1.
[2] The maximum penalty for offences under s 21(1) and s 23(1) of the Act is 9,000 penalty units for a body corporate. This equates to a maximum fine of $1,664,280 against Onkar in relation to each of rolled up charges 2 and 3.
4Mr Nagi has pleaded guilty to two charges:
·Charge 4: Being an officer of a body corporate, that contravened section 21(1) of the Act – where that contravention was attributable to the officer’s failure to take reasonable care.
·Charge 5: Being an officer of a body corporate, that contravened section 23(1) of the Act – where that contravention was attributable to the officer’s failure to take reasonable care.[3]
[3] The maximum penalty for offences under s 21(1) and s 23(1) of the Act is 1,800 penalty units for a natural person. This equates to a maximum fine of $332,856 against Mr Nagi in relation to each of charges 4 and 5.
Circumstances of the offences
5The prosecution opening,[4] was not disputed and comprehensively describes the circumstances of the offences and the subsequent WorkSafe investigation.
[4] The Summary of Prosecution Opening which was read to the court on the first day of the plea opening (dated 2 June 2025) was subsequently amended without objection. The updated amended opening is dated 5 August 2025.
6At the time of the incident, Onkar operated from a warehouse in Keysborough and employed approximately 30 drivers as sub-contractors to collect and deliver baked goods to businesses such as cafes, restaurants, and supermarkets across Melbourne and Regional Victoria. Onkar provided each driver with a delivery vehicle and directions as to where to make deliveries.
7Mr Khashee worked as a contracted delivery driver for Onkar between 10 May 2022 and the date of the collision.
8On the evening of 16 August and into the following morning of 17 August 2022, Mr Khashee was driving an overnight delivery route known as the ‘Albury Run’.
9Mr Khashee had been driving the Albury Run between 1 June 2022 and the 17th of August 2022, the date of the collision.[5] Each of the 5 charges are particularised as having occurred between these dates.
[5] The opening refers to WhatsApp Messages sent by Mr Khashee that confirms his hours of work between 1 July and the date of the collision; I was informed during the plea, other documentation, confirmed Mr Khashee also drove on the Albury Run throughout the month of June 2022.
10Performing the Albury Run would normally require Mr Khashee to commence work between approximately 11 pm and 1:30am and would require him to drive from his home in St Kilda to a warehouse in Moorabbin to collect items for delivery.
11Mr Khashee’s first delivery was usually in Oakleigh South. He would then attend various locations throughout metropolitan Melbourne and regional Victoria on the way to Albury. On his return to Melbourne, Mr Khashee conducted further deliveries. The number of deliveries when performing the Albury Run varied between 18 to 24.
12At each location, Mr Khashee was required to send a WhatsApp Message to Onkar with a photograph, confirming that the delivery had taken place. The WhatsApp Messages were monitored by Mr Nagi, by Mr Kumar, an Operations Manager for Onkar, and Mr Bhatia, the Fleet Manager for Onkar.
13Mr Khashee’s final delivery would usually be in Shepparton, although sometimes his last delivery was in Benalla.
14On the morning of the fatal collision Mr Khashee was driving a van supplied by Onkar. His first delivery was in Oakleigh South at 12:39am and his last delivery was just over 12 hours later, at 12:40pm in Shepparton.
15Shortly after his last delivery, Mr Khashee was driving the van in the southbound lane of a 100km/h zone on the Goulburn Valley Highway, Kialla West. A truck carrying two empty shipping containers, was travelling in the opposite direction in the northbound lane. Weather conditions were good and visibility was clear. Dashcam footage from the truck shows that Mr Khashee’s van veered from the southbound lane across solid double white lines and into the northbound lane. The truck moved to the left attempting to avoid the collision. The van disappears from the dashcam footage moments before it collided with the driver’s door and containers on the truck.
16Onkar became aware of the incident on 18 August 2022. Mr Nagi was overseas, in the USA, on the date of the fatal collision.
17The total estimated driving distance of the Albury Run is 796 kilometres. The total estimated driving time is approximately 10 hours and 54 minutes. This estimated driving time does not include the time it would take to stop at the delivery locations and deliver the goods, or the time driving before the first delivery, and the time driving home after the last delivery.
18When Mr Khashee commenced work with Onkar he was provided with on the job training conducted by the Fleet Manager, Mr Bhatia. As part of the training Mr Khashee was told ‘to take rests every two hours and to leave the steering wheel’. Mr Bhatia told investigators, that ‘there were no set times for breaks, but I told him to take 20-30 minutes each time’.
19Mr Khashee’s ‘Training Feedback Report’, states Mr Khashee was provided with induction training by Mr Bhatia on 10 May 2022. This included information about ‘safe driving’ and ‘fatigue management’. Under the heading ‘Trainer’s feedback’, Mr Bhatia wrote an entry stating:
‘Rohulla Khashee (Leo) is a safe driver on the road and follow (sic) all the road rules. He is never rushing to finish his task on time. He feels a little bit difficulty with organizing the deliveries but in my opinion, this can be improved with experience and time.
20Mr Kashee signed a ‘Subcontractor Contract’ with Onkar dated 26 May 2022. Mr Nagi signed the contract on behalf of Onkar. The contract contained a section titled ‘Sub-Contractor Delivery Driver Break-Time policy’ which stated:
Subcontractor drivers are advised to take a 30-minute break during their scheduled shift wherever they deem fit. This is Bakeology’s recommendation along with the Transport Laws in VIC. This break must occur after 3.5 hours into the shift, and prior to 5.5 hours after the fixed start time of subcontractor drivers ordinary hours of work. Breaks must be taken in a safe location, wherever the subcontractor drivers desire along their route. If fatigued, subcontractor drivers are implored to take a 5-minute refresher break during their shift for road-safety practices.
21This ‘Break- Time Policy’ was included in the contracts between Onkar and all its contracted delivery drivers save and except for four contracts that were signed in a period of time before Mr Khashee commenced work with Onkar and to which I will make further refence later in these reasons. Mr Khashee’s contract provided that he was to be paid a daily minimum fee of $350.
22A WorkSafe investigation conducted after the fatal incident obtained documents which included, WhatsApp messages from 1 July 2022 to 17 August 2022 from Mr Khashee to Onkar, including photographs of deliveries, and phone records of Mr Khashee between 1 May 2022 and 18 August 2022.
23On the second day of the plea hearing the prosecution tendered a table that summarises the WhatsApp messages sent by Mr Khashee to Onkar between 1 July and 17 August 2022. The last column of the table estimates the driving time (excluding the period of driving before the first and last delivery) Mr Khashee worked during these dates.[6]
[6] Ex E was tendered during the second day of the plea hearing without objection.
Expert Opinion
24WorkSafe engaged two experts to express opinions regarding Mr Khashee’s schedule of work and the likely level of fatigue he would have experienced driving the Albury Run. These opinions were not challenged.
25WorkSafe Inspector Tan, a Senior Psychological Health and Safety Specialist and registered psychologist, was one of the experts; the other, was Professor Dawson, who has a Doctorate in Psychology and is the Director of the Centre for Sleep Research at the University of Adelaide.
26Inspector Tan used Fatigue Assessment software by InterDynamics (FAID). He entered data based upon the WhatsApp messages sent by Mr Khashee, which were time stamped and correlated with deliveries over the days leading up to the day of the collision. The analysis showed:
(a) From 9 July 2022 to 17 August 2022 a large proportion (at least 5 hours) of every presumed work shift (as indicated by the WhatsApp timestamps linked to proof of delivery messages) posed an increased risk of fatigue. The increased risk of fatigue was represented by FAID scores of above 80.
(b) On 16 August 2022, the entire presumed work shift (11 hours 30 minutes) posed an increased risk of fatigue, with a peak FAID score of 142.
(c) FAID scores between 80 and 100 are equivalent to the predicted level of work-related fatigue achieved after 21 to 24 hours of continuous sleep deprivation. Performance impairment at such a level of sleep deprivation is comparable to that experienced at a blood alcohol concentration over 0.05%.
27Inspector Tan expressed the view that operating a vehicle with impaired performance can lead to slower reaction times and/or lapses in attention, which in turn, increase the risk of serious injury or death.
28Inspector Tan also expressed the view that the roster characteristics and reliance on drivers to monitor fatigue represented a failure of Onkar’s system of work to assess and control the risk of fatigue, so far as was reasonably practicable.
29Professor Dawson was provided with a list of “first and last” delivery times for Mr Khashee, based on the WhatsApp delivery confirmation photos from the period between 1 July and 17 August 2022. He noted that these likely under-estimated Mr Khashee’s working times, as they excluded his commute to and from home, the drive to collect his load, and the drive to his first delivery location. It became apparent during the plea, that there was an error in some of the data provided to Professor Dawson; the data supplied suggested Mr Khashee did not work on 31 July 2022 whereas phone records suggest he did work that day. While Professor Dawson was of the opinion it was difficult to determine the likely level of Mr Khashee’s fatigue at the time of the collision, he utilised the FAID software and expressed the opinion that between 1 July 2022 and 17 August 2022, Mr Kashee, likely experienced an estimated average level of fatigue-related impairment greater than a 0.05% BAC for more than 90% of his hours ‘on the road’.
30Based on the ISO[7] 3100 likelihood scale Professor Dawson expressed the opinion that fatigue related error was ‘almost certain’ for the majority of hours Mr Khashee worked in the week prior to the incident. Using the Karolinksa Sleepiness Scale and a computer simulation he expressed the view that Mr Khashee’s fatigue levels were described as being level 8 (sleepy, some effort to stay awake) or 9 (very sleepy great effort to stay awake, fighting sleep) for most of Mr Khashee’s time driving.
[7] International Organisation for Standardization.
31In Professor Dawson’s opinion, the working time arrangement would carry a very high likelihood of fatigue-related error and the consequence of such an error is extremely severe. He opined that Onkar’s system of work was entirely inadequate with respect to managing the risks associated with driving while fatigued and that the shift pattern and roster was ‘at best an onerous schedule that fails completely to provide an employee with sufficient time to sleep, rest and recover in order to return fit for work’.
32Professor Dawson, expressed the view that the training and education provided by Onkar was ‘manifestly inadequate and scientifically inaccurate’; that further information was required to be provided to drivers, as to how to identify and manage fatigue; he identified freely available guidance material, some of which is published online by WorkSafe Victoria, SafeWork Australia, and the National Heavy Vehicle Regulator (NHVR), which could be located using a simple Google search.
33It was not in dispute that these NHVR guidelines are designed for heavy vehicles and do not regulate the driving of the van driven by Mr Khashee. Nevertheless, Professor Dawson expressed the opinion that these recommendations ‘provide clear guidance to those involved in the transport task and these guidelines are often adopted by companies looking to establish a performance benchmark for their risk assessment/mitigation process’.
34The WorkSafe investigation determined that between October 2021 and February 2022, Onkar entered into four contracts with delivery drivers that incorporated the NHVR 2022 guidelines. Those contracts included the following provision:
Sub-contractors act as solo drivers and are responsible for taking breaks when they please during their shifted work. We advise subcontractors to follow the below Safety, Accreditation & Compliance Fatigue Management from the National Vehicle Regulator (NHVR) 2022.
Time
In any
period of…
Work
A driver must not work for more than a maximum of…
Rest
And must have the rest of that period off work with at least a minimum rest break of…
5 ½ hours 5 ¼ hours work time 15 continuous minutes rest time 8 hours 7 ½ hours work time 30 minutes rest time in blocks of 15 continuous minutes 11 hours 10 hours work time 60 minutes rest time in blocks of 15 continuous minutes 24 hours 12 hours work time 7 continuous hours stationary rest time* 7 days 72 hours work time 24 continuous hours stationary rest time 14 days 144 hours work time 2 x night rest breaks# and 2 x night rest breaks taken on consecutive days *Stationary rest time is the time a driver spends out of a heavy vehicle or in an approved sleeper berth of a stationary heavy vehicle.
35Mr Nagi signed each driver contract on behalf of Onkar that included the above policy which is a direct extract of the NHVR Standard Hours.
36There was no evidence presented during the plea hearing that shed any light on why these guidelines appeared in only four contracts Onkar entered into with contracted drivers in a period of time before Mr Khashee was employed, but were not included in any other contracts signed after February 2022, and not in the contract signed with Mr Khashee.[8]
[8] The contract between Onkar and Mr Khashee is Ex 13 on behalf of Onkar. It was signed on behalf of Onkar by Mr Nagi.
Statements from other employees of Onkar
37As part of WorkSafe’s investigation, statements were obtained from former and current drivers employed by Onkar and Mr Kumar and Mr Bhatia.
38Mr Kumar was Mr Khashee’s direct manager. He stated that on one occasion he told Mr Khashee he needed to take a break. In response, Mr Khashee told him ‘it is okay, I do not need a break as I have my friend’. Mr Kumar saw a friend with Mr Khashee on one occasion.
39Mr Bhatia also states that before the collision Mr Nagi and Mr Kumar were responsible for the fatigue management of drivers, but after the incident Mr Bhatia performs this task on his own. Mr Bhatia states he observed Mr Khashee with a friend on two occasions, but he did not know who the friend was.
40Mr Madhav was a former driver at Onkar. Over a two year period he completed the Albury Run 6 days a week. He states the Albury Run would take between 14 to 16 hours, included 25 deliveries, and if he took a break he would be late for deliveries. He states that Mr Nagi would tell him to rest at night and make sure he slept between delivery days. Mr Madhav states he used to get very tired and remembers ‘many times falling asleep at the wheel, especially in winter when we would turn the heater up’. He states that he told Mr Nagi ‘I wanted to do four days as I was always tired’ but Mr Nagi responded that there was no one else to do the run on the other days. In 2020 or 2021 Mr Madhav reduced his work hours and stopped doing the Albury Run.
41A former Operations Manager and driver with Onkar, Mr Atla, left the role of operations manager in March 2022. He stated that he was provided with templates by Mr Nagi to make ‘run sheets’ for drivers for each route. He regularly worked 14 hour shifts and there were no rules around rest and fatigue. On one occasion when he was completing the Albury Run, he was tired and pulled over and fell asleep for 4 hours.
42Another driver, Mr Jasti was employed by Onkar between 2020 and 2022. He drove a route that would take between 12-13 hours and he used to get very tired. He recalled instances of falling asleep when driving and waking when he hit lines on the road. He states that he told Mr Nagi about these incidents and Mr Nagi would offer to increase his pay but would not shorten the ‘Run’. Mr Jasti states on one occasion he fell asleep while driving and his vehicle hit railings in the middle of the road. The vehicle was not extensively damaged. Mr Jasti took a rest and as he was worried he would be charged an insurance excess by Onkar if he reported the details of the incident, he reported the damage as involving a Kangaroo.[9]
[9] Ex 13: The contract signed by Mr Khashee includes the provision: ‘Any vehicle damage or accidents are the responsibility of the driver. In the case of a driver causing damage to a vehicle, the driver will be responsible for paying the insurance excess that is incurred.
43The prosecution relies upon these interviews with drivers and staff as evidence of Onkar and Mr Nagi’s knowledge of the risks associated with sub-contractors driving while fatigued; the length of time required to complete the Albury Run; the inadequacies of the company’s systems of work, and the inadequate training provided to delivery drivers.[10]
[10] Summary of Prosecution Opening [57].
44After the incident on 17th of August 2022 two drivers share the driving for the Albury Run. Mr Gali was employed by Onkar in January 2023 and performs the Albury Run two days per week. He was trained to do the Albury Run with another driver. They take breaks regularly, at least every three hours.
Improvement Notices
45WorkSafe Inspectors issued Improvement Notices to Onkar after the fatal incident. The first notice was issued on 10 October 2022. The Notice required a detailed fatigue management policy to be implemented by Onkar. Onkar were referred to guidance materials from the National Heavy Vehicle Regulator including Standard Hours and Driver Work Diary Requirements.
46A WorkSafe Inspector attended Onkar on 12 December 2022 and observed that while a GPS vehicle tracking management program had been installed in Onkar vehicles, there were some deficiencies in monitoring the program. Compliance with the first notice was not regarded as satisfactory.
47On 15 December 2022, the Inspector re-attended Onkar, both he and Mr Bhatia contacted drivers completing regional delivery runs. All drivers conveyed that they were aware of requirements for rest breaks and were complying with the requirements. As a result, the company was deemed to have complied with the first notice.
48On 9 March 2023 a further inspection at Onkar revealed the GPS monitoring system was not available for the Albury Run and it was apparent the company could not monitor if appropriate rest breaks were being taken by drivers. A second Improvement Notice was issued.
49On 17 April 2023 a further inspection at Onkar revealed that the situation was rectified. The GPS tracking of vehicles on the Albury Run was working effectively. WorkSafe declared compliance with the second notice.
Legal Principles and Objective Gravity of the Offences
50The legal principles applicable to OHS offences are not in dispute. General deterrence ‘will normally assume considerable significance’ and is a ‘consideration of great importance’. The objective seriousness of the offending is the primary factor in determining the appropriate sentence. Subjective factors pertaining to the accused, such as a plea of guilty, financial circumstances, remedial measures to improve safety, while relevant and must be taken into account, play a subsidiary role in determining what is a just and appropriate penalty.[11]
[11] Prosecution Submissions On Plea and : [6]- [9] and the authorities cited therein.
51Charge 1 is the most serious charge faced by Onkar. It is a breach of S 32 of the Act. It involves recklessly engaging in conduct that places or may place another person in danger of serious injury. It is regarded ‘by definition, as well as by express intent’ as a ‘high culpability offence’.[12]
[12] Dennis Jones Engineering Pty Ltd v R [2025] VSCA 76 [ 55] (‘Dennis Jones Engineering’); citing with approval Orbit Drilling Pty Ltd v The Queen (2012) 35 VR 399 at 414.
52In Orbit Drilling,[13] the Court of Appeal stated that a S 32 offence is different from other offences under the Act, which are offences of absolute liability. A S 32 offence ‘calls for rules of attribution’. It is necessary to identify the person(s) whose recklessness is to be attributed to the company for this purpose.’[14] The court stated:
The degree of culpability of an offender who contravenes S 32 will depend on what is established regarding the offender’s awareness of: first, the degree of probability that the worker would be placed in danger of serious injury; and, secondly, the nature of the probable danger thus foreseen.[15]
[13] Orbit Drilling Pty Ltd v The Queen (2012) 35 VR 399 at 414 (‘Orbit Drilling Pty Ltd v The Queen’).
[14] Ibid at p 404.
[15] Ibid 414 [60]; Cited with approval in Dennis Jones Engineering at [55]
53As the offending involves foresight of probable consequences, ‘closer attention’ is usually paid to the actual consequences of the offence. The Court of Appeal has observed:
Where the employer’s reckless conduct does cause actual harm, the extent of the harm might be thought to be relevant to penalty, at least where what occurred was within the scope of the danger foreseen. It might be said, for example, that the reckless exposure of an employee to risk would be viewed more seriously when it resulted in the employee’s death than when it resulted in serious injury.[16]
[16] Prosecution submissions [11] citing Orbit Drilling Pty Ltd v The Queen at [63] and cited with approval in Dennis JonesEngineering at [56].
54As the foresight in this case is related to driving at speeds associated with travelling in rural Victoria, while fatigued, it would be difficult to contend that what occurred, namely, a serious collision causing death, was outside the scope of the danger foreseen.
Victim Impact
55Somaia Khashee, Mr Khashee’s wife made a victim impact statement in which she poignantly describes the devastating consequences of the death of Mr Khashee:
Rohullah was not just my husband, he was my partner, my protector, and the foundation of our family. He was a kind, hardworking, and selfless man who dedicated his life to providing for those he loved. He carried the heavy responsibility of supporting not only me but also his mother and sisters, ensuring that we had a home, food, and the hope of a better future. He was the heart of our family, and without him, we are lost.
56She describes her grief as ‘unbearable’. She is now struggling to survive in Afghanistan where she, and Mr Khashee’s mother and sisters, are in a desperate financial situation. She describes their futures as ‘uncertain and frightening’.
57It must be said that no fine imposed by this court can or should be regarded as in any way a measure of the value of the life of Mr Khashee. However, it is simply the fact that the court, pursuant to this section, places closer attention to the consequences of the offence, and the death of Mr Khashee is a tragic consequence of this offending.
58Charges 2 and 3 against Onkar, and charges 4 and 5 against Mr Nagi, are risk-based rather than outcome-based offences. Emphasis is placed upon the failure to adequately address the risk.
59In relation to charges 2-5 I must be conscious of the following sentencing principles:
(a) the gravity of a contravention is determined by two factors: the seriousness of the breach (that is, the degree of departure from the duty); and the extent of the risk resulting from the breach;
(b) the second of these factors – the extent of the risk – is a product of two further factors: the likelihood of the occurrence of an endangering event as a result of the breach; and the potential gravity of the consequences of that event.
60Charge 2 against Onkar is based upon the company’s failure to maintain a safe working environment for employees. It also incorporates the failures relating to training, and the failure to provide sufficient information designed to minimise the risk to health and safety.
61Charge 3 against Onkar relates to the same deficiencies as expressed in Charge 2, but in relation to the risks posed to road users (other than employees of Onkar) who may have been at risk due to Mr Khashee’s driving.
62Charges 4 and 5, are the same contraventions as charges 2 and 3 but are against Mr Nagi personally. The charges are pursuant to S 144 of the Act which states that an offence is committed in circumstances where a contravention of the Act ‘is attributable to an officer of the company failing to take reasonable care’.
Comparable Cases
63The Prosecution has referred me to a number of comparable cases with the concession that none of the cases referred to are directly comparable to this case.[17]
[17] Proseuction submissions [27].
64Three of the cases involve breaches S 32 of the Act. The cases provide some limited assistance but also exemplify the range of factors that might be relevant in evaluating the objective gravity of particular offending.
65Dennis Jones Engineering[18] involved an apprentice being directed to steady a pipe in a lathe in circumstances where it was known by the employer that such a practice, given the length of the pipe, was dangerous. The prosecution submits that a distinguishing feature is that the offending occurred on a single date, whereas in this case, the offending continued over a protracted period of time. The company was fined the equivalent of approximately 58% of the maximum penalty. Although that case did not involve a death, the injuries suffered by the victim were catastrophic.
[18] Dennis Jones Engineering Pty Ltd v R [2025]VSCA 76 (‘Dennis Jones Engineering’).
66In Bedford,[19] (a County Court decision) a company director personally instructed unqualified divers to perform commercial diving tasks in circumstances where regulations were breached; the divers were not properly trained, and the divers were provided with inadequate equipment. The prosecution distinguishes this case on the basis that nobody was injured or killed. The learned sentencing judge imposed fines that were only a small percentage of the maximum penalties. There were a number of S 32 offences, as there were a number of divers, and it appears the amount of the fines imposed were tempered by considerations of totality.
[19] DPP v Bedford and Anor [2023] VCC 1047 (‘Bedford’).
67The case of Orbit Drilling[20] involved an inexperienced and untrained worker being directed to drive a heavily loaded truck with defective breaks down a steep slope. The truck had been poorly maintained, and the records relating to the maintenance of the truck should have alerted the company to the risk that the brakes were possibly defective. The worker died as a result of losing control of the truck. The fine imposed equated to 77.5% of the maximum penalty; however, the Court of Appeal made comments regarding the inadequacy of the maximum penalty at that time. The maximum penalty for a breach of S 32, has been significantly increased since Orbit Drilling was decided.[21]
[20] See FN 10
[21] At the time Orbit Drilling Pty Ltd v the Queen was decided the maximum penalty for a s 32 offence was (9000) penalty units, the same penalty as for a s 21 Offence. The penalty for a s 32 offence has subsequently been increased to 20,000 penalty units.
68The other cases referred to by the Prosecution related to County Court decisions in respect of breaches of s 23 and s 21 of the Act. They relate to two companies being sentenced in respect of the same incident involving a driver of a ‘Roadside Assist Vehicle’ working for such a long and continuous period that he suffered a fatal accident as a result of fatigue. [22] The Prosecution submits that the objective seriousness of the offending by Onkar is greater because these cases do not involve recklessness, and the contravention occurred over a shorter period of time.[23]
[22] Royal Automobile Club of Victoria [2021] VCC 2150; YJ Auto Repairs [2023] VCC1759
[23] The driver had worked 89 hours of a 96 hour on call shift, and 17 hours straight before the fatal incident.
69I accept that one of the aggravating features of this offence is the number of days Onkar engaged Mr Khashee to perform the Albury Run.[24] However, in my view there are aggravating features in the cases referred to by the prosecution, that do not feature as predominantly in this case.
[24] It should be stated that the term ‘aggravating features’ may not be the most appropriate term as it is the period of time itself that is causally related to the elevated risk associated with fatigue. That is, rather than it being an additional feature where the offence is already made out it is part of the circumstances that go directly to the element of the probable risk that was created.
70In the three cases regarding the breach of s 32, the victims were particularly vulnerable in that they were not able to appreciate the dangers to which they were being exposed; or realistically, what actions they could have taken to moderate the risk.
71For example, in Dennis Jones the victim was a second year apprentice who had not previously worked with the longer pipes that were more dangerous when placed in the lathe. He was directed to perform the dangerous task by the director of the company who was present, taking part in the activity himself, and who had many years experience. The employer had personal knowledge of the risk by witnessing a longer pipe breaking off years before. One could hardly expect a second year apprentice in these circumstances to appreciate the risks he was exposed to, or realistically, how he might take steps to minimise the risk.
72Similarly in Orbit Drilling, the victim was an inexperienced twenty-one year old who had no knowledge of the requirements for proper training to perform the task he was directed to perform, or the fact that the brakes on the truck he was asked to drive were defective. Again, he was being directed to perform the dangerous task by someone who was present and who held a superior managerial position. It was practically difficult for the driver to take any action to minimise the risk other than an outright refusal to perform the task.
73In Bedford, inexperienced and untrained divers were directed to perform the tasks that placed them at risk by the owner of the company who was a qualified commercial diver with specialised knowledge. The victims relied upon what they believed was the specialised knowledge of the employer, who was present and directing them to perform their work. They were sometimes reassured, and implored by the employer to continue with their dangerous work, despite their reservations and inadequate equipment.
74In my view, a relevant distinguishing feature in the case against Onkar is that the risk of fatigue when driving is a risk that is commonly understood within the community. To some extent a driver is best placed to monitor their own levels of fatigue. It is also common knowledge that the best way to manage the risk of fatigue is to take a break; this is something that is easier for a driver to do when driving on his own than the actions required to alleviate the risks in the S 32 cases referred to by the prosecution.
75When I raised these distinguishing features of the cases with the prosecutor, Ms Argiropoulos, she did not submit that the above observations were irrelevant to the assessment of objective gravity of the offending; however, she relied upon provisions of the Act that subcontractors are to be regarded as employees.[25] She also referred me to cases, although not specifically concerning a breach of S 32, involved consideration of how the Act places obligations on employers to be proactive in minimising the risks to the health and safety of employees.[26]
[25] See sections 4 ,5 and 21(3) .
[26] See S 4 of the Act ; Holmes v R E Spence & Co Pty Ltd (1992) 5 VIR 119; DPP v Amcor Packaging Australia Pty Ltd (2005) 11 VR 557.
76I found comments of Harper J in Holmes to be particularly apposite to the circumstances of this case. In considering a breach of s 21 of the Act, His Honour stated:
The Act does not require employers to ensure that accidents never happen. It requires them to take such steps as are practical to provide and maintain a safe environment. The courts will best assist the attainment of this end by looking at the facts of each case as practical people would look at them; not with the benefit of hindsight, nor with the wisdom of Solomon, but nevertheless remembering that one of the chief responsibilities of all employers is the safety of those who work for them.
Remembering also that, in the main, such a responsibility can only be discharged by taking an active, imaginative and flexible approach to the potential dangers in the knowledge that human frailty is an ever-present reality.
77Although these comments were made in relation to S 21 of the Act, they are in my view, applicable when considering the recklessness in this case. The expert evidence provides a detailed analysis of the risk Mr Khashee was exposed to by driving the Albury Run for such long hours for so many consecutive days. However, as acknowledged by the plea, Onkar did not need to be aware of this detailed analysis to have foresight of the risks of driving fatigued associated with such a schedule. The company had previously incorporated into their contracts the NHVR guidelines that recommended a safe schedule of rest breaks required when driving for prolonged periods. Although no data has been presented for the work schedule Mr Khashee performed when driving the Albury Run in June 2022, the WhatsApp Messages, and phone records, reveal Onkar engaged Mr Khashee to drive the Albury Run over approximately 7 weeks without the recommended days off to rest.[27] The company did not need to be aware of expert analysis to appreciate that Mr Khashee was being engaged to perform a work schedule that was both gruelling and dangerous.
[27] Although there is no WhatsApp Messages revealing the driving time on 31 July 22, phone records suggest Mr Khashee drove on the Albury Run that day.
78The prosecutor submitted that it was open to the court to impose an aggregate sentence in respect of Charges 2 and 3 against the company and an aggregate sentence on charges 4 and 5 against Mr Nagi. This is because the conduct substantiating charges 2 and 3, and the conduct substantiating charges 4 and 5 is the same. The reason there are two charges relating to the same conduct is that the consequences of the conduct pose risks to different people; in the case of charge 2 and 4 employees, and in the case of charge 3 and 5 persons other than employees. I accept that submission and intend to adopt that course.
The prosecution also submitted that in relation to the aggregate sentence imposed in respect of charges 4 and 5, it would be open to the court to impose a Community Corrections Order on Mr Nagi.
Considerations of Totality.
79As mentioned above, Mr Nagi is the sole director of the Onkar company. In this sense the fines imposed upon the company will adversely impact upon him personally. It is not in dispute that this is a relevant factor to which I must have regard. This is an important consideration when applying the principle of totality. The principle requires that although each charge is to be considered separately I must not lose sight of the total amount of the fines imposed in respect of the totality of the offending; and that the fines imposed on the company will also have an impact upon Mr Nagi.
80I might observe that in relation to imposing an aggregate penalty in respect of charges 2 and 3, I am of the view that there is a greater overlap between charge 1 and charge 2 than between charge 1 and charge 3. Although charge 2 involves particulars of conduct relating to the failure to provide adequate safeguards, training and information to employees that are not elements of charge 1, it is difficult to envisage how a company might be guilty of charge 1, in circumstances where the person placed in danger was an employee, without also being guilty of charge 2. Charge 3, on the other hand, relates to the risk posed to ‘persons other than employees’.
81The prosecution also submitted it was appropriate to make an Adverse Publicity Order pursuant to s 135 of the Act. Initially, Mr Connors, on behalf of Onkar, submitted that an adverse publicity order should not be imposed. He ultimately withdrew that submission and instead submitted that an adverse publicity order should be regarded as part of the punishment imposed upon the company and be taken into account in applying the totality principle. I accept that submission.
Defence Submissions and Factors in Mitigation
82Neither Mr Connors on behalf of the company, nor Ms Edwards on behalf of Mr Nagi, made detailed submissions regarding the objective gravity of the offences. Mr Connors made the point that the contract signed by Mr Khashee did allow his deliveries to be conducted by a third party; however, this point was not pursued as being of significance in evaluating the objective gravity of the offending. It was not submitted that the company believed that anyone other than Mr Khashee was driving the Albury Run during the period of the charges; the undisputed summary (and particulars of the charge) are based upon Mr Khashee being the person who performed the driving over the period of the charges.
83Mr Connors, on behalf of the company submitted that the company was a family business that had since its inception in 2009 grown from a single-van delivery operation to a commercial-scale enterprise servicing over 150 delivery points. The company was (in the sense that the term can apply to a company) of previous good character.
84Further, the company had demonstrated remorse by pleading guilty at an early stage, and consistent with its good character co-operated fully with WorkSafe. Although, as described above there was some initial failures to comply with the improvement notices, the company had, after a relatively short period of time, comprehensively rectified the risks relating to fatigue. The company had spent over one hundred thousand dollars in installing a GPS monitoring system that enabled it to monitor drivers’ compliance with mandated rest brakes. It had engaged managerial personnel to oversee daily safety compliance, and instituted mandatory declarations required of drivers and driver diaries, which required drivers to demonstrate their compliance with required rest brakes. [28]
[28] See Letter from Sunil Kumar the Operations Manager at Onkar for the last three years, and Yash Dahiya a sub-contract driver working for Onkar for 14 months up to May 2025.
85Mr Connors’ written submissions detail the various procedures put in place since the incident that he submitted ‘represent a permanent shift in the company’s approach to safety, risk management and accountability’. [29]
[29] Written submissions on behalf of Onkar [5] ; along with Driver checklist records.
86Letters were tendered from people who had worked for the company or who had an association with the company. The letters described the company as diligent concerning workplace safety.[30] These letters suggested this offending was inconsistent with the previous good character of the company.
[30] References from Vastave Bhatia and Rohil Bishnoi (and Sunil Kumar and Yash Dahiya)
87Mr Connors also tendered the Financial Statements of the company for the years ending in 2021, 2022, and 2023 and a letter from an account, Mr Chetan Rele, who had provided accounting services to Onkar and Mr Nagi for 13 years. The letter states that the financial position of the company was commercially sound at the time of the incident but that currently the company is not commercially sound with several debts and liabilities.
88The financial statements recorded that at the end of the financial year in 2021 profit was recorded as $860 765.45, whereas at the end of the financial year in 2023 it was $37,332.67.
89Mr Connors submitted that, Mr Nagi, has for several months deferred his own income and directed all financial resources to maintain staff payments and cover supplier costs.
90Mr Connors’ written submission states:
A significant monetary penalty would almost certainly push the company into insolvency. This would not only result in the loss of livelihood for over 40 subcontractors and their families but would also compromise the long-term implementation of improved safety systems.
A modest fine is respectfully submitted as being the only penalty consistent with the company’s financial realities and the principle of proportionality. A fine of $20,000 would be half the annual operating profit for the last annual return.
91Counsel for Mr Nagi, Ms Edwards, emphasised Mr Nagi’s previous good character. She relied upon his early plea of guilty and remorse. Many of the details of Mr Nagi’s background and his reaction to the incident are described in a psychological report of Mr Jeffrey Cummins.[31]
[31] Ex 2: Psychological Report of Jeffrey Cummins dated 8 May 2025.
92Mr Nagi is 49 years old and was born in New Delhi. He finished year twelve and completed a Diploma in Computer Science in India. He married at the age of 22 and has two daughters. The family migrated to Australia via a skilled visa program in 2006. The family members became Australian citizens in 2008.
93Ms Edwards described Mr Nagi’s personal background as a very successful ‘migrant experience’. He was 30 years old when he came to Australia. He purchased (in partnership) a newsagency in Footscray which he operated for three years while also working as an owner driver for a bakery. He built up his own bread delivery business through hard work and ultimately became the director of Onkar which now manages 40 delivery vehicles.
94Mr Cummins gave evidence during the plea hearing and expanded on the matters he had detailed in his report.
95After administering a number of psychological tests on Mr Nagi and discussing the impact of the incident, Mr Cummins wrote in his report:
It is my opinion Mr Nagi is now diagnosed with a Major Depressive Disorder which is severe in type and Complex PTSD (an ICD-11 diagnosis).[32]
[32] Mr Cummins, further detailed in relation to this diagnosis: A Complex PTSD diagnosis requires the presence of a traumatic stressor defined as an extremely threatening or horrific event or series of events, an endorsement of at least one symptom from each of the six symptom clusters including (i) reexperiencing in the present, (ii) avoidance of traumatic reminders, {iii) a sense of current threat, (iv) affective dysregulation, (v) negative self-concept and (vi) difficulties in forming and maintaining interpersonal relationships. Complex PTSD diagnosis requires that these symptoms cause substantial impairment in functioning. Onset of symptoms can occur across the lifespan and are typically related to exposure to chronic or repeated traumatic events or victimisation that has continued for a period of months or years.
96Mr Nagi’s eldest daughter, aged 26 had been undertaking tertiary studies for 2 and half years but left her course to work for Onkar in an administrative role as a result of this incident. Mr Cummin’s report states:
Mr Nagi's mental health has deteriorated very significantly as a result of the subcontracted employee's death in the accident on 17/8/2022 and as a consequence Mr Nagi has no longer been able to manage his business as thoroughly as he was able to do prior to the accident and as a consequence he has now employed one of his daughters, a manager, a fleet manager and two supervisors.
97Tendered on behalf of Mr Nagi were a number of character references that described him as deeply remorseful and as a caring and supportive individual. Each reference attested to his devotion to his family, hard work ethic, and integrity.[33]
[33] See Ex 5- Letters from Amir Chaudry and Akbar Nathani
98Both the report of Mr Jeffrey Cummins and a letter from Mr Nagi’s General Practitioner describe him as suffering from type 2 diabetes as well as anxiety and stress related conditions. He is receiving medication for some of these conditions.
99Like Mr Connors on behalf of Onkar, Ms Edwards, emphasised how Mr Nagi had responded to the offending by ensuring that there are now very strict safety measures in place that monitor drivers’ compliance with requirements to manage their fatigue.
100In relation to Mr Nagi’s financial circumstances Ms Edwards tendered Australian ‘Taxation Office Notice of Assessment’ documents for the years ending 2021, 2022 and 2023. These documents demonstrated a relatively modest taxable income over those years.[34] Reliance was also placed on the accountant’s letter referred to above that states that Mr Nagi does not have personal assets but for 2 properties as part of a venture agreement. He also has personal loans and a tax debit amounting in total to $55,000.
[34] $59,489, $113,279, $48,190 respectively.
101Ms Edwards submitted that the court should not impose a conviction on Mr Nagi. She raised a concern regarding the psychological impact of a conviction upon Mr Nagi,[35] and also the effect a conviction might have on his ability to be a director of a company. She submitted that a conviction may prevent him from being able to travel to the USA to visit his mother and siblings. It was not in dispute that Mr Nagi’s father had passed away in the USA shortly after the incident the subject of these proceedings, and that Mr Nagi’s mother who is aged 68 has recently undergone open heart surgery. Ms Edwards also submitted that a Community Corrections Order should not be imposed upon Mr Nagi as he would suffer a great deal of shame and embarrassment by having to be placed on such an order.
[35] See Jeffrey Cummins report at [56] and his evidence of Mr Cummins T 19 June 25 P 46 L 7 that the recording of a conviction would have a significant impact on Mr Nagi’s psychological state.
102Ms Edwards, like Mr Connors, submits Onkar ‘operates on narrow margins, servicing multiple subcontractors whose livelihoods’ depend on its continuation. Further, Mr Nagi has not drawn substantial personal profit from the business and his family remains financially dependent upon him. She submits only a modest fine is appropriate in the circumstances.
Prosecution Submissions in Response
103During the hearing the prosecutor conceded that the plea on behalf of both Onkar and Mr Nagi should be regarded as entered at an early stage. It was also conceded that the character references and psychological report were consistent with Mr Nagi being remorseful, and that the delay between the incident and the matter being finalised was likely to have exacerbated Mr Nagi’s mental health problems since the incident.
104Further, it was conceded that while there was a short period of non-compliance with the Improvement Notices, there had been very effective remedial action taken by the company and Mr Nagi that reduced the ongoing risk. Given the remedial action and prior good character of Onkar and Mr Nagi, specific deterrence might be regarded as being of little weight.
105I accept these concessions. I have taken these factors into account in moderating the fines to be imposed.
106The prosector submitted that the material and submissions on behalf of Onkar and Mr Nagi’s financial position was not completely clear regarding their ability to pay a fine. It was pointed out that over the three years (from 2021 to 2023), to which the financial statement related, the income of the company appeared to increase (from 3.1 million to 5.1 million), but because of expenses the profit of the company was less. Further, the expenses of the company were not completely transparent and the documentation demonstrated that the company owned fairly substantial assets. The most recent financial statement recorded $320,000 as cash in the bank, and the accountant’s letter suggested that while the company is at present not commercially sound, Mr Nagi should ‘refinance his entire fleet and take out a business loan’.
107In relation to Mr Nagi’s personal financial position it was submitted there was also a degree of uncertainty; the Notice of Assessments only related to taxable income, and there is no description of the actual value of the 2 properties held by Mr Nagi as part of a venture agreement.
108Further, it was submitted that arrangements can potentially be made for a fine to be paid over time by instalments. As I understood the submission, it was that while the defendants had submitted correctly, that the court must take into account ‘as far as practicable the financial circumstances of the offender and the nature of the burden that its payment will impose’,[36] it was unclear whether a fine that properly reflected the objective gravity of the offending would allow the company to continue to trade.
[36] s 52 of the Sentencing Act 1991 (Vic).
109The prosecutor referred to recent authority that reinforced the principle that general deterrence is the predominant sentencing consideration and ‘an offender’s capacity to pay cannot result in the imposition of a fine that fails to reflect the objective seriousness of the offence or the need for general deterrence’.[37]
[37] DPP v LH Holding Management Pty Ltd; DPP v Laith Hanna [2025] VSCA 75.
110In relation to Mr Nagi it was submitted that the circumstances of the offending were too serious to result in a penalty without conviction and the evidence was speculative as to whether a conviction as opposed to a finding of guilt would result in Mr Nagi being able to travel to the USA, or result in him being unable to act as a director of a company. In relation to the option of a CCO on charge 4 and 5, it was pointed out that Mr Cummins’ evidence was that Mr Nagi would benefit from ongoing counselling.[38]
[38] T 19 June 25 P 48 L 7-10.
111Further, that while the company currently employed numerous staff, the authorities did not suggest that was a relevant consideration that could be taken into account when considering what was a just and proportionate sentence.
Sentence
112I accept that Mr Nagi personally has been deeply affected by this tragedy. He is a person of previous good character. He has built up, through hard work, a company that provides a valuable service and provides employment for a number of people. Mr Nagi is genuinely remorseful. Significant time and expense has been saved by early pleas of guilty and there has been an unfortunate delay that has no doubt exacerbated the anxiety and strain Mr Nagi has had to deal with until this matter is finalised. Both he and the company are to be commended for reacting to this tragedy by putting in place a sophisticated electronic monitoring system that ensures drivers take appropriate rests.
113I also accept that since the incident, and partly because of the incident, the company has lost business and is financially struggling. I have taken into account these matters and the material relating to the financial circumstances of the company and Mr Nagi by moderating the fines I impose. However, as I pointed out to Mr Connors during the plea, to impose a modest fine, ‘proportionate to the company’s current operating capacity’ on the basis the company’s annual profit is $40,000, would not reflect the objective gravity of the offending.
114In relation to the Adverse Publicity Order, this case, unlike many other cases involving breaches of OHS provisions posed a significant risk to the safety of members of the public. It also, according to the report of Mr Cummins, involved a misunderstanding on the part of Mr Nagi; Mr Nagi told Mr Cummins, “Well he was a subcontractor and I always thought it was his responsibility to manage issues to do with fatigue”.[39]
115An Adverse Publicity Order should be imposed in the hope that it will promote general deterrence and educate employers of subcontractor drivers that they must not abdicate their responsibility to manage issues relating to fatigue.
116I accept the prosecution submission that charges 4 and 5 are too serious to allow a penalty without conviction. The offending period is prolonged. The statements of other drivers working for Onkar provide evidence that the company and Mr Nagi failed to respond appropriately to issues regarding fatigue. Mr Jeffrey Cummins gave evidence that as a result of assessing Mr Nagi, he ascertained that leading up to the incident, Mr Nagi was concerned about issues of fatigue for drivers because they were matters that had been raised.[40] Mr Nagi was aware of the NVHR guidelines as he had signed contracts that previously included those guidelines. Mr Khashee was engaged on a Work Schedule that breached those guidelines in a number of different respects.
[40] Transcript 19 June 25 P 41 L 3- 15.
117I am also, not satisfied on the balance of probabilities a conviction as opposed to a finding of guilt will necessarily change Mr Nagi’s ability to travel to USA or his ability to be a director of a company in the future. No evidence was tendered in support of that submission. However, even if I was so satisfied, the seriousness of the offences committed by Mr Nagi, must result in a conviction.
118Given the objective gravity of the offending, and the primacy of general deterrence as a sentencing consideration, I must impose fines in an amount that, given the material before me, it is unclear whether the company will be able to continue to trade. I accept the prosecution submission that I cannot have regard to the consequences that flow to other current employees of the company should that be the case.
119Since the plea hearing was conducted I have had Mr Nagi assessed as to his suitability to undertake a CCO. The assessment indicated that Mr Nagi is already engaging with mental health services in the community and that he is working on a full time basis. Given his instructions to Ms Edwards that he is reluctant to be placed on such an order, and the limited weight to be attached to specific deterrence, I have decided to impose an aggregate fine in respect of charges 4 and 5.
120Balancing as best I can the various sentencing considerations in this case and having regard to the material placed before me, the submissions of the parties, and all relevant matters, I impose the following sentence:
121In respect of charge 1 Onkar is convicted and fined the amount of $1,100,000.
122On charges 2 and 3 Onkar is convicted and fined an aggregate amount of $250,000.
123On charge 4 and 5 Mr Nagi is convicted and fined an aggregate amount of $80,000.
124Pursuant to S 135 of the Act, I order that Onkar must publicise a one off, full page advertisement, in Owner Driver magazine that details the offending and penalties imposed consistent with Schedule 1 attached to these reasons. Further, pursuant to S 135(1)(b) of the Act, the terms of this order are to be actioned before 28 February 2026, and Onkar is to provide the Victorian WorkCover Authority by the same date written evidence of compliance with this order.
125Pursuant to S 6AAA of the Sentencing Act I declare that had the company not pleaded guilty to charges 1, 2 and 3 I would have imposed fines totalling $2,000,000. Had Mr Nagi not pleaded guilty to charges 4 and 5 I would have imposed fines totalling $145,000.00
DPP v ONKAR GROUP PTY. LTD. & MANINDER SINGH NAGI
SCHEDULE 1 – ADVERSE PUBLICITY ORDER
1On 17 August 2022, Rohullah Khashee, a 27 year old delivery driver, was killed when the delivery van he was driving drifted across double white lines and collided with an oncoming truck on the Goulburn Valley Highway near Shepparton.
2Mr Khashee was conducting deliveries for Onkar Group Pty Ltd (Onkar), trading as Bakeology. Onkar’s company director is Maninder Singh Nagi. Onkar engaged Mr Khashee to deliver baked goods to various locations overnight, starting in Melbourne and travelling throughout Victoria to Albury on a route known as the Albury Route. Onkar provided a delivery van and required deliveries to be carried out 7 days a week.
3The circumstances surrounding the collision were investigated by WorkSafe. WorkSafe identified that Mr Khashee had undertaken the Albury Run every day between 1 July 2022 and 17 August 2022, without adequate breaks or time to rest and recover between shifts.
4WorkSafe issued charges contrary to the Occupational Health and Safety Act 2004 (OHS Act) against Onkar and Mr Nagi personally, as company director of Onkar. Onkar and Mr Nagi pleaded guilty to the following charges:
a) Onkar recklessly placed, or may have placed, Mr Khashee in danger due to fatigue by failing to ensure he worked with appropriate rest breaks contrary to section 32 of the OHS Act (Charge 1);
b) Onkar failed to provide or maintain a system of work in relation to Onkar’s shift schedule and Onkar failed to provide the necessary information, instruction and training to Khashee in relation to fatigue, contrary to section 21(1) of the OHS Act (Charges 2, 3);
c) Mr Nagi was charged on the basis that Onkar’s failure to provide or maintain a system of work and failure to provide information, instruction and training were attributable to his failure to take reasonable care, contrary to section 144(1) of the OHS Act (Charges 4, 5).
5Onkar and Nagi pleaded guilty to the respective charges. In doing so, they each acknowledged Mr Khashee was exposed to a risk of serious injury or death due to slower reaction times, lapses in attention or falling asleep while driving as a result of fatigue. They accepted:
a) it was reasonably practicable for Onkar to provide or maintain a system of work that allowed for rest breaks as set out in the National Heavy Vehicle Regulator Standard Hours, readily available at and
b) it was necessary to provide Mr Khashee with information in relation to fatigue, instruction in relation to mitigating the risks of fatigue and training in these matters.
6The failure to implement these measures caused Mr Khashee’s death.
7Following the incident Onkar assigned two drivers to share the driving for the Albury Route and installed a GPS vehicle tracking management program to monitor driver fatigue.
8On 11 September 2025, the County Court of Victoria convicted and fined Onkar an aggregate of $1,350,000. Mr Nagi was convicted and fined an aggregate amount of $80,000. The Court ordered Onkar and Nagi to publicised the offence and penalty imposed in the form of this notice.
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