SafeWork NSW v Campbelltown Hardware Pty Ltd and Khalid

[2021] NSWDC 217

District Court

New South Wales

Medium Neutral Citation:

SafeWork NSW v Campbelltown Hardware Pty Ltd and Khalid [2021] NSWDC 217

Hearing dates:

19 May 2021

Date of orders:

31 May 2021

Decision date:

31 May 2021

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

Penalty - Campbelltown

1   Campbelltown Hardware Pty Limited is convicted.

2   I impose a fine of $75,000.

3  Campbelltown Hardware Pty Ltd is to pay the prosecutor’s costs of the proceedings against it, as agreed or assessed.

4 I order pursuant to s 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.

Penalty – Mr Khalid

5   Muhammad Jawad Khalid is convicted.

6   Taking into account Mr Khalid’s lack of capacity to pay a fine, I impose no other penalty pursuant to s 10A Crimes (Sentencing Procedure) Act 1999.

7 Muhammad Jawad Khalid is to enter into a WHS undertaking pursuant to s 239 Work Health and Safety Act 2011 on the following conditions:

(1)  The matter is adjourned to 31 May 2023.

(2) The offender is to appear before the Court if called on to do so during the term of the adjournment.

(3)  The offender is not to commit any offence under the Work Health and Safety Act 2011 during the term of the adjournment.

(4)  The offender is to notify the Registrar of the District Court at the Downing Centre of any change of address for service.

8   I make no order for payment of the prosecutor’s costs of the proceedings against Muhammad Jawad Khalid, by the offender.

Catchwords:

CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury – death of worker

SENTENCING - objective seriousness - deterrence - aggravating factors - mitigating factors – appropriate penalty

SENTENCING PRINCIPLES - no record of previous convictions - good prospects of rehabilitation - remorse - plea of guilty – capacity to pay a fine – WHS undertaking

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999

Work Health and Safety Act 2011

Cases Cited:

Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37

Jahandideh v R [2014] NSWCCA 178

R v Borkowski (2009) 195 A Crim R 1

R v Thomson & Houlton (2000) 49 NSWLR 383

R v Youkhana [2004] NSWCCA 412

Texts Cited:

Australian Standard AS 2359.2-2013

Work Health and Safety Regulation 2017

Category:

Sentence

Parties:

SafeWork NSW (Prosecutor)
Campbelltown Hardware Pty Ltd (Defendant)
Muhammad Jawad Khalid (Defendant)

Representation:

Counsel: M Moir (Prosecutor)
Y Sharif SC/M Hawila (Defendants)

Solicitors: Legal, Department of Customer Service (Prosecutor)
T & S Law Firm (Defendants)

File Number(s):

2019/373256
2019/373178

Publication restriction:

None

Judgment

Introduction

1. Campbelltown Hardware Pty Ltd (Campbelltown) appears for sentence after it pleaded guilty to an offence pursuant to s 32 Work Health and Safety Act 2011 (the Act) in that it failed to comply with the health and safety duty it owed pursuant to s 19(2) of the Act and thereby exposed Brian Piper to a risk of death or serious injury. The maximum penalty for this offence is a fine of $1.5 million.

2. Muhammad Jawad Khalid appears for sentence after he pleaded guilty to an offence pursuant to s 32 of the Act, in that he failed to comply with the health and safety duty he owed pursuant to s 27 of the Act and thereby exposed Brian Piper to a risk of death or serious injury. The maximum penalty for the offence is a fine of $300,000.

Facts

3. The parties tendered an Agreed Statement of Facts that can be summarised as follows.

4. Campbelltown operated a business selling timber and building materials to trade customers from its premises at 5 Rose Street, Campbelltown. Mr Khalid was a director with day-to-day responsibility for running the business.

5. On 5 December 2017 Mr Piper was employed as a truck driver, driving a truck owned by his employer, MLA Logistics Pty Ltd and was delivering timber supplied by Wesbeam Pty Ltd from St Marys to Campbelltown’s premises.

6. The premises were a large secured industrial site with dual access roads allowing delivery trucks to manoeuvre. There was a small workshop housing retail items and a staff office and meal room. Delivery trucks attended the premises on a daily basis to deliver timber and associated items for sale by Campbelltown.

7. On 5 December 2017 at approximately 5.30am Mr Piper attended Wesbeam’s premises at St Marys to pick up the load of timber. Mr Piper’s truck was overloaded, overweight and stacked unusually with larger packs of timber stacked on top of smaller ones, and multiple packs sitting at an angle. The packs of timber were loaded by a forklift operator at Wesbeam. Each pack of timber weighed between 200 and 800 kgs. Mr Piper strapped the load prior to proceeding to Campbelltown’s premises for delivery.

8. Mr Piper arrived at the premises between 8am and 9am. It was the first time he had been to the premises. Mr Muhammad Jamal was employed by Campbelltown as a yard man and was its only licenced forklift operator. When Mr Piper arrived at the premises, Mr Jamal was in the process of loading another truck using the forklift. Mr Jamal instructed Mr Piper where to park his truck in the yard. After Mr Jamal finished loading the other truck he drove the forklift towards Mr Piper’s truck.

9. After a short discussion with Mr Piper, Mr Jamal positioned the forklift on the driver’s side of the truck whilst Mr Piper commenced unstrapping the load. It was the responsibility of the truck driver to unstrap the load.

10. Mr Piper unhooked the straps from the driver’s side of the truck and then walked over to the passenger side to pull the straps back. After Mr Piper had removed the straps, Mr Jamal proceeded to remove one of the top packs of timber. Mr Jamal drove the forklift to a point where it was at 90 degrees to the tray of the truck, adjacent to and facing the middle of the driver’s side of the tray. Mr Jamal then raised the tines to remove one of the top packs of timber and drove the forklift forward.

11. Mr Jamal did not communicate any further with Mr Piper when he moved the forklift adjacent to the driver’s side of the tray and raised the tines. At this point, Mr Jamal had no effective line of sight to Mr Piper. Mr Jamal did not know the exact location of Mr Piper when he raised the tines.

12. A short time later, Mr Jamal heard a bang and saw other workers running towards the location of the truck. Mr Jamal dismounted his forklift and proceeded to the passenger side of the truck where he reported seeing Mr Piper lying on the ground with blood coming from his head. Two packs of timber had fallen from the top of the truck, and there were blood stains on the plastic wrapping of one of these packs.

13. An ambulance was called and arrived a short time later.

14. Mr Khalid was present at the premises on the day of the incident. He had commenced office duties from approximately 7.30am that day. He ran outside the office where he saw one of the Campbelltown workers running across the yard and he later spoke to emergency services personnel who attended the premises.

15. Mr Piper sustained large lacerations to his right scalp of approximately 27 cms in length and right lower leg, fractures to his ribs and upper right leg, collapsed lungs and extensive pelvic injuries. Mr Piper was attended to at the site by New South Wales Ambulance officers, however, he died from cardiac arrest caused by his extensive head injuries.

16. On the day after the incident police attended and carried out a re-enactment of the incident by reloading the truck with the packs of wood that had been removed by Mr Jamal. The police re-enactment demonstrated that the end of the forklift tines dislodged the middle and top packs on the passenger side causing them to fall from the truck. The middle pack struck Mr Piper.

17. There was ample objective guidance material available to Campbelltown including:

1. Clauses 34-38 of the Work Health and Safety Regulation 2017 (the Regulations);

2. Australian Standard AS 2359.2-2013, relating to the safe loading and unloading of trucks and the establishment of traffic management plans (TMP).

18. At the time of the incident Campbelltown had the following in place:

1. a traffic management map, marked entry and egress points and signage for the flow of traffic through the premises that did not amount to a TMP.

2. an employee kitchen and rest area which was also used as a waiting area for drivers;

3. Mr Jamal, the forklift operator, held a high risk licence for forklift operations;

4. informal systems of work at the site; and

5. a nominated area for truck parking and unloading, including a waiting area for truck drivers, although this did not amount to a designated exclusion zone that would have complied with the requirements of AS 2359.2-2013.

19. At the time of the incident Mr Piper was not in an exclusion zone. Mr Piper was not directed to occupy any specific area within the site whilst his truck was being unloaded.

20. There was only one spotter present at the site at the time of the incident. He was assisting another forklift operator and was not available to assist Mr Jamal.

21. There was no formal documented system, process or procedure in place for providing forklift drivers with a direct line of sight to the drivers of trucks unloading at the premises.

22. There was an informal process for inducting Campbelltown’s own workers but not for visitors to the premises. Mr Piper was not provided with an induction when he arrived at the premises.

23. Mr Khalid was aware of the nature of the hazards associated with loads falling from trucks, the risks arising and measures available to eliminate or minimise exposure to the risk.

24. Mr Khalid did not ensure Campbelltown had available to it and utilised sufficient resources to ensure that each forklift operator had available to them an allocated spotter to assist with unloading.

25. There was no documented process or written safe work procedure for the unloading of trucks at the premises.

26. Mr Khalid did not ensure Campbelltown developed, implemented and maintained a documented safe work procedure for the loading and unloading of materials from trucks and its premises.

27. Campbelltown was aware drivers should stay away from trucks while they were being unloaded using forklifts. Campbelltown was also aware there should have been a spotter with a forklift driver so that if there were any blind spots the spotter could signal the forklift driver.

28. No documented system was in place at the premises for reporting, assessing or reviewing hazards. There was no documented risk assessment conducted by Campbelltown in relation to the loading or unloading of trucks at its premises.

29. There was no documented system in place for maintaining records in relation to the currency of high risk licences of Campbelltown’s employees to operate forklift trucks.

30. Immediately following the incident on 5 December 2017, SafeWork NSW issued a number of Improvement Notices to Campbelltown.

31. After the incident, Campbelltown promptly:

1. developed and implemented a documented risk assessment of the task of loading and unloading timber from trucks at the premises titled “Loading and Unloading Procedure”;

2. developed, implemented and maintained a documented safe system of work for the loading and unloading of trucks at the premises which included establishing a documented exclusion zone, directing forklift drivers not to begin loading or unloading until the truck driver is located within the exclusion zone, employing additional spotters and developing and implementing a TMP at its new business location in Smeaton Grange.

32. Campbelltown complied with all the Notices issued to it by SafeWork NSW and moved its business to the Smeaton Grange site shortly after the incident. Campbelltown ceased to own its own forklift trucks and instead leased them, after which all forklift maintenance was undertaken on a regular basis by the forklift leasing company.

The offenders’ case on sentence

33. The offender relied on an affidavit sworn by Mr Khalid on 17 May 2021. Mr Khalid was present at the sentence proceedings and not required for cross-examination.

34. The content of Mr Khalid’s affidavit can be summarised as follows.

35. Mr Khalid is 34 years of age. He is the managing director of Campbelltown. He is married with one daughter. His wife and daughter both reside in Pakistan.

36. Mr Khalid was born in Pakistan and lived there until September 2007. In about April 2007 his father passed away. Mr Khalid had to give up his college studies to support his mother and four siblings.

37. In September 2007 Mr Khalid came to Australia on a student visa. His intentions were to continue his studies, get a good job in Australia and to financially support his family. At present, his mother, siblings, wife and daughter rely on him for financial support. Mr Khalid provides as much financial assistance to them as he can.

38. In or about December 2007 he commenced working as a warehouse assistant at a hardware store in Bexley. In about late 2008 he was promoted to an in-house bookkeeper. In 2010 he was promoted to accounts manager. Whilst managing the accounts department he gained insight into how the timber industry operated and developed relationships with suppliers and stakeholders in the industry. He continued to work as the accounts manager for about six years. Whilst employed at the hardware store he completed a WorkCover NSW “National OHS Construction Induction Training”.

39. On 26 January 2016 Mr Khalid became an Australian citizen. He resigned his employment in about March 2016.

40. In July 2016 Mr Khalid founded Campbelltown with another person who he worked with at the hardware store, Muhammad Ali Arshad. Campbelltown’s core business was the commercial and retail supply of timber and carpentry products to carpenters and builders.

41. On 1 February 2017 Campbelltown commenced trading from the premises at 5 Rose Street, Campbelltown. Campbelltown has created a number of employment opportunities for local people. By about May 2007 Campbelltown employed seven staff of which three worked full time and four were part time. There were many times during the initial stages of the business that Mr Khalid and Mr Arshad were forced to take reduced wages in order to have sufficient funds to pay employees, contractors and suppliers.

42. At present, Campbelltown employs 15 workers including Mr Arshad and Mr Khalid, of which six work full time, four part time and there are five casuals. Nine of Campbelltown’s employees work in the warehouse or yard and six undertake office-related duties.

43. At about the time of the incident Campbelltown received about three deliveries of timber on a daily basis. In addition, Campbelltown delivered approximately 10 loads of timbers from its site to customers throughout metropolitan Sydney. A regular pattern of deliveries from a small number of suppliers developed. Mr Arshad and Mr Khalid knew the truck drivers who came to the yard. Those truck drivers knew the site, where to go and what to do. Mr Khalid deposed that until the incident occurred on 5 December 2017, it had been many years since a new truck driver had visited Campbelltown’s premises.

44. Mr Khalid deposed that Campbelltown and himself have always been committed to workplace safety and understand the importance of the need to comply with the legislation. He described safety as a priority and understood it was important to properly resource safety issues to avoid incidents.

45. Prior to the incident, Campbelltown was in its first nine months of trading. The safety system in place at the time of the incident consisted of the following:

1. Mr Jamal was employed as a forklift driver and held a high risk forklift licence for about seven years before joining Campbelltown. He was employed on a full time basis to operate the yard. He was responsible for day-to-day operations of the yard and the warehouse. Mr Jamal received training from Mr Khalid during the course of his employment;

2. Campbelltown undertook weekly meetings with employees where work health and safety matters were regularly discussed;

3. Mr Khalid undertook daily on-site inspections to ensure workers were abiding with their WHS obligations;

4. Mr Khalid trained workers on the loading and unloading of trucks, in particular, the forklift drivers on their WHS obligations. Forklift drivers were required to assess the risk of each load before loading/unloading and were in control of determining appropriate safety measures. As Campbelltown worked with the same small number of suppliers, truck drivers and workers, Mr Khalid believed that the truck drivers and workers were safety conscious and that he observed them to work in a safe manner;

5. Campbelltown employed a full time spotter whose role was to remain in the yard and to guide and assist forklift drivers during the loading and unloading process;

6. Campbelltown supplied appropriate personal protective equipment (PPE);

7. Campbelltown had an informal system of work relating to traffic management and the loading and unloading of trucks. Campbelltown and Mr Khalid instructed and trained the workers on traffic management, loading and unloading procedures and particularly the need for risk assessments before loading or unloading of trucks. The system required truck drivers to park in the loading bays marked, to unstrap their load and then wait in the employee lunch room whilst the truck was being unloaded. Prior to the incident, it was Mr Khalid’s belief that all workers, including forklift drivers, were aware of this rule. Forklift drivers were instructed not to approach the loading bay until the spotter had indicated that the truck driver was in the lunchroom. Given the number of trucks attending the site each day workers were trained and instructed to conduct on-the-spot risk assessments before starting to load or unload the truck. Once the truck was loaded or unloaded the spotter was required to call the truck driver to return to their truck and depart the site;

8. The workers were trained and instructed to report any safety issues to Mr Khalid in person;

9. A traffic management map was in place at the site. It was created as part of the development application to change the use of the site when Campbelltown took it over;

10. The informal system in place at the time of the incident did not require the use of exclusion zones but did provide for separation of truck drivers from the loading and unloading process.

46. By their pleas of guilty, the offenders accept that a documented risk assessment relating to the task of loading and unloading timber should have been undertaken, that a safe system of work should have been developed, implemented and maintained for loading and unloading of trucks in compliance with the Australian Standard or through the use of a traffic management plan and that the workers should have been inducted, trained and instructed in that safe system of work.

47. The day of the accident was Mr Piper’s first delivery to the yard. Mr Piper’s truck was overloaded, overweight and stacked unusually high and irregularly. There were larger packs of timber sitting on top of smaller ones and multiple packs of timber sitting at an angle. Mr Khalid was in the office on site at the time when Mr Piper arrived. Mr Jamal asked Mr Piper to unstrap the load and invited him to wait in the truck driver waiting room. Mr Jamal told Mr Piper how to get to the lunch room.

48. On the day of the incident, the spotter was assisting another forklift operator on site and not available to assist Mr Jamal in unloading Mr Piper’s truck.

49. When Mr Khalid became aware of the incident, he rushed outside and called emergency services, before rendering first aid.

50. The death of Mr Piper has had a profound adverse impact on Mr Khalid. Mr Khalid has had extended contact with Mr Piper’s son. Campbelltown has provided financial assistance to Mr Piper’s son in the sum of just over $13,000. The incident also had an adverse impact on the workers at the site who were offered counselling. Many of the workers took extended leave after the incident, which Campbelltown paid for.

46. Immediately after the incident, Mr Khalid undertook a process of reviewing the safety system in place at the yard. Work was ceased until risk assessments could be undertaken.

47. Campbelltown complied with a number of notices issued to it by SafeWork NSW. Shortly after the incident, Campbelltown’s business was relocated to an alternate site in Smeaton Grange, where it continues to operate.

48. The move to Smeaton Grange involved costs of about $50,000 and an increase of monthly rent of about $5,000.

49. Campbelltown has developed, implemented and maintained a new system of work based on the Australian Standard for loading and unloading trucks at the premises. All workers have been trained in the system of work. The system of work includes a documented designated exclusion zone around trucks being loaded or unloaded and training of forklift drivers not to begin loading or unloading until the truck driver is located, sited and confirmed to be in the exclusion zone. Campbelltown has employed additional spotters to ensure that each forklift driver is assisted at all times. Campbelltown has developed and implemented two traffic management plans at the new site.

50. Campbelltown implemented training on the safe system of work in a series of workshops with all workers. During the workshop, workers were provided with a copy of the loading and unloading procedure.

51. In the period 15 February 2018 to 2 February 2021, Campbelltown conducted monthly toolbox meetings dedicated to the safe system of work and documented risk assessment. During these meetings workers were selected at random and asked questions in relation to their understanding of the systems and were required to provide feedback relating to their personal experience in implementing the system.

52. Campbelltown has developed in-house WHS training videos addressing safety requirements which are regularly updated and used in the induction of new employees.

53. Mr Arshad and Mr Khalid meet monthly to discuss any safety related issues raised by staff and ways to maintain and improve the safe systems of work. Campbelltown is currently in the process of engaging an independent auditor of the safety system.

54. After the incident a number of Campbelltown’s employees have received first aid training. Campbelltown has become a member of an industry association providing benefits including access to premium WHS resources and training. Mr Khalid has completed an online Hazard Identification Risk Management Course offered through the industry association.

55. Mr Khalid is responsible for ongoing auditing and monitoring of compliance with safety policies and procedures. Mr Khalid has introduced a documented audit checklist which is used in the course of safety inspections. Campbelltown has implemented a QR code reporting system to simplify the reporting of incidents, hazards and risks. A worker can scan a QR code which brings up a report form to which photographs can be uploaded and then submitted. The hazard report is sent to Mr Khalid and Mr Arshad for action on it.

56. Campbelltown has also installed CCTV cameras across the site as an additional way of monitoring WHS compliance. The surveillance footage is played in real time throughout the day in Mr Khalid’s office. When he is away from the office he can access the surveillance footage through a mobile phone application.

57. Campbelltown has implemented a forklift operator’s daily checklist through a mobile phone application. The checklist assists in identifying and addressing any hazards associated with the operation of the forklifts. Campbelltown has changed to leasing forklifts, to ensure that forklift maintenance and repairs are undertaken on a prompt and regular basis by the forklift leasing company.

58. Campbelltown has engaged a number of management and safety consultants to assist it in improving its safety systems.

59. In 2021 Campbelltown sent nine workers to attend an external training course hosted by Skill Training Australia for training relating to safe systems of loading and unloading trucks, the implementation of traffic management plans and the safe operation of forklifts and other mobile plant equipment.

60. Mr Khalid estimates that after the incident Campbelltown has spent in the vicinity of $171,210 in implementing improvements to its safety system.

61. On behalf of Campbelltown, Mr Khalid accepted responsibility for the failures that gave rise to the risk that Mr Piper was exposed to at the site that caused his death. Mr Khalid expressed his deep regret for the incident and acknowledged the significant impact that the incident has had on Mr Piper’s family. Mr Khalid also expressed an apology to the Court and the broader community. Mr Khalid acknowledged and regretted the effect that the incident has had on Campbelltown’s workers and truck drivers.

62. Mr Khalid deposed that the incident had a profound impact on him. He still experiences nightmares of the incident, overwhelming feelings of guilt, a lack of appetite and symptoms of depression. He has seen a psychologist to assist him and also seeks the counsel of his Iman. He has also experienced stress related chest and left arm pain. Mr Khalid has flashbacks of the incident which he says he will never forget. Mr Khalid deposed that Mr Jamal has returned to Pakistan. Mr Khalid accepts that the incident has caused great suffering to Mr Piper’s family and he is determined not to allow further safety related incidents in the future. Mr Khalid believes that he has learned from this experience and that it has assisted him in making the company a safer place to work.

63. Campbelltown has made charitable donations and has taken steps to reduce its carbon footprint. Campbelltown has assisted carpenters to start up new businesses through the advancement of money and provision of credit.

64. Mr Khalid deposed that both he and the company assisted SafeWork with its investigation in relation to the incident.

65. Between about April 2020 and January 2021 Campbelltown has borrowed in excess of $2 million to keep the business afloat. This has allowed the business to pay off debts in the sum of about $660,000 that has been referred to debt collectors and to cope with some bad debts.

66. Mr Khalid annexed to his affidavit the financial reports of Campbelltown for the period 2017 to 31 March 2021. Those results can be summarised as follows:

1. in 2017 the company generated $1,041,466 in gross income and accrued a net loss of $11,435.

2. in 2018 the company generated $6,535,628 in gross income and made a profit of $3,725;

3. in 2019 the company generated $6,083,400 in gross income and made a profit of $2,733;

4. in 2020 the company generated $6,247,695 in gross income and made a profit of $11,943;

5. for the year ending 31 March 2021 the company generated a gross income of $6,191,000 and is presently trading at a net loss of $99,962. It appears from the account that legal fees are primarily responsible for this negative balance sheet.

72. Mr Khalid deposes that each month the operating costs of the company exceed the net profit by about $8,000. Mr Khalid deposes that the impact of the fine on Campbelltown would be detrimental and would probably fall to be paid by himself and Mr Arshad.

73. Mr Khalid deposes that he does not own any property or significant assets in Australia or abroad. He has one bank account with a current balance of $2,227.30. He has a joint bank account held in Pakistan with his wife with a balance of approximately $266.17.

74. Mr Khalid draws $1,500 net in wages from Campbelltown each fortnight, which amounts to a wage of $39,000 net per year. Since 2017, Mr Khalid and Mr Arshad have not drawn down wages regularly to ensure that Campbelltown has enough funds to cover its operating costs. On many occasions they have not drawn down any wages at all.

75. Mr Khalid has received money from other sources including loans from the company, personal loans and loan from the Pakistani community. On 30 July 2020 Mr Khalid took $10,000 from his superannuation fund, which he loaned to the company on the same day. Of this amount, $8,000 was repaid by the company in four tranches.

76. Mr Khalid has also borrowed money from family members and friends.

77. Mr Khalid sends about $850 per fortnight to support his family in Pakistan. Mr Khalid deposed that his family are dependent on that money for daily living expenses. After sending money to his family in Pakistan he is left with about $650 per fortnight which is applied to his daily living expenses including rent, groceries, travel and utility. Mr Khalid lives in shared accommodation as he cannot afford to rent his own premises. Mr Khalid’s tax returns indicate an income of $8,440 in 2017; $35,040 in 2018 and $42,521 in 2019.

Consideration

78. I have had regard to the objects of the Act set out in section 3 and the purposes of sentencing set out in section 3A Crimes (Sentencing Procedure) Act 1999.

Objective Seriousness

79. The offences are of significant objective gravity.

80. The pleaded risk to a truck driver loading or unloading goods at the premises was actually known to Campbelltown and Mr Khalid.

81. Campbelltown had taken inadequate steps to identify the risk and respond to it in a documented and systematic way. Mr Khalid failed to ensure that those measures were put in place by Campbelltown.

82. The informal systems in place prior to the incident were applied ad hoc, were insufficient to eliminate the risk and did not adequately minimise the risk.

83. The likelihood of the risk occurring was moderate.

84. The potential consequences of the risk included a risk of death.

85. The steps that could have been taken by Campbelltown and arranged by Mr Khalid, were simple, well known in the industry and could have been implemented quickly and at little cost.

86. The actual risk to Mr Piper was contributed to by others. The timber was loaded onto Mr Piper’s truck in an unsafe way by Wesbeam’s workers. However, if Campbelltown had implemented the appropriate control measures, all risks posed to Mr Piper could have been eliminated.

87. The extent of the harm caused was significant. The death of Mr Piper is a significant aggravating feature of the offences.

88. I have taken into account the maximum penalty for the offences.

Deterrence

89. The penalty imposed in relation to this offence must provide for general deterrence. Employers must take the obligations imposed by the Act very seriously. The community is entitled to expect that both small and large employers will comply with safety requirements. General deterrence is a significant factor when safety obligations are breached: Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37 at [180].

90. The penalty imposed must also provide for specific deterrence. Campbelltown still operates an industrial business that poses a significant risk of harm to its workers and visitors to its premises. Mr Khalid still manages its day-to-day functions. I note that there was some system in place at the date of the incident and that there have been significant improvements made following the incident.

Aggravating factors

91. The injury, harm and loss caused by the s 32 offences was substantial: s 21A(2)(g) Crimes (Sentencing Procedure) Act 1999. In order for the aggravating factor to be established, I must be satisfied beyond reasonable doubt that the harm was greater or more deleterious than may ordinarily be expected for the offence in question: R v Youkhana [2004] NSWCCA 412 at [26]. The offence does not require an injury to be sustained but only the creation of a risk. In this case, the death of Mr Piper is sufficient to establish the aggravating factor.

Mitigating factors

92. The offenders do not have any record of previous convictions s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999. Campbelltown was incorporated on 25 July 2016. Mr Khalid was aged 30 at the date of the incident.

93. The offenders have good prospects of rehabilitation: section 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. The extensive steps taken by Campbelltown and Mr Khalid demonstrate that each of them have good prospects of rehabilitation. I am satisfied on the evidence that those steps have made Campbelltown’s activities significantly safer.

94. The offenders have demonstrated remorse: section 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. Mr Khalid, on behalf of himself and Campbelltown, has accepted responsibility for the failings that led to the incident and has expressed genuine contrition and remorse.

95. The offenders entered a plea of guilty: section 21A(3)(k) and section 22 Crimes (Sentencing Procedure) Act 1999. It is entitled to a discount on penalty that reflects the utilitarian value of that plea: R v Thomson & Houlton (2000) 49 NSWLR 383 and R v Borkowski (2009) 195 A Crim R 1 at [32]. The plea also indicates remorse: Borkowski at [32]. The appropriate discount is 25%.

96. The offenders co-operated with the SafeWork investigation: section 21A(3)(m) Crimes (Sentencing Procedure) Act 1999.

Capacity to Pay a Fine

97. The Court is required to have regard to section 6 Fines Act 1996 before imposing a fine. Where an offender seeks to have a fine reduced on the basis of a limited capacity to pay, it bears the evidentiary onus of convincing the Court that it should exercise its discretion to limit the amount of the fine. The offender’s capacity to pay is relevant but not decisive: Jahandideh v R [2014] NSWCCA 178 at [16]. A substantial fine may still be warranted as a result of the seriousness of the offence and the need for general deterrence.

98. Both Campbelltown and Mr Khalid have demonstrated a limited capacity to pay a fine. Campbelltown was operating a fledgling business at the time of the incident. It is still in a building phase, but has demonstrated some stability in its returns. Campbelltown accepted that it had some capacity to pay a fine and did not submit against the prosecutor’s costs. Campbelltown has borrowed heavily to continue to operate. I have some doubt as to whether its levels of borrowing are sustainable. The debt incurred by Campbelltown is guaranteed by Mr Khalid and Mr Arshad. I expect that they will continue to have to take reduced drawings for Campbelltown to survive in business. The business has afforded to pay about $100,000 in legal expenses in relation to these proceedings. It appears that it may have some further capacity to borrow from its non-commercial lender.

99. Mr Khalid has no capacity to pay a fine or the prosecutor’s costs. He presently has personal assets of under $3,000. His capacity to earn an income is inextricably linked to Campbelltown’s business. Notwithstanding the objective seriousness of the offence, of which he will be convicted, the imposition of a fine would amount to a crushing sentence and the circumstances of the case require the application of considerable leniency.

100. In this case, denunciation of the offence and the requirements for the penalty to reflect general and specific deterrence will be incorporated into the penalty imposed by requiring Mr Khalid to enter into a Work Health and Safety Undertaking for a period of two years. There is very little need for specific deterrence in this case. Mr Khalid has responded swiftly and comprehensively to introduce measures that make the prospect of him re-offending very small. The death of Mr Piper has also had a significant psychological impact on him that will serve as a poignant reminder of the need to ensure safety in the workplace. The imposition of a bond carries with it significant consequences if it is breached.

Penalty - Campbelltown

101. Campbelltown Hardware Pty Limited is convicted.

102. I have taken into account the Victim Impact Statement prepared by Mr Piper’s daughters in determining the appropriate penalty to be imposed on the basis that the impact of his death on his family is an aspect of harm done to the community.

103. Taking into account its limited capacity to pay a fine, the appropriate fine is $100,000 that will be reduced by 25% to give effect to the plea of guilty.

104. I impose a fine of $75,000.

105. Campbelltown Hardware Pty Ltd is to pay the prosecutor’s costs of the proceedings against it, as agreed or assessed.

106. I order pursuant to s 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.

Penalty – Mr Khalid

107. Muhammad Jawad Khalid is convicted.

108. I have taken into account the Victim Impact Statement prepared by Mr Piper’s daughters in determining the appropriate penalty to be imposed on the basis that the impact of his death on his family is an aspect of harm done to the community.

109. Taking into account Mr Khalid’s lack of capacity to pay a fine, I impose no other penalty pursuant to s 10A Crimes (Sentencing Procedure) Act 1999.

110. Muhammad Jawad Khalid is to enter into a WHS undertaking pursuant to s 239 Work Health and Safety Act 2011 on the following conditions:

1. The matter is adjourned to 31 May 2023.

2. The offender is to appear before the Court if called on to do so during the term of the adjournment.

3. The offender is not to commit any offence under the Work Health and Safety Act 2011 during the term of the adjournment.

4. The offender is to notify the Registrar of the District Court at the Downing Centre of any change of address for service.

111. I make no order for payment of the prosecutor’s costs of the proceedings against Muhammad Jawad Khalid, by the offender.

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Decision last updated: 31 May 2021