SafeWork NSW v HMR Supplies Pty Ltd

[2025] NSWDC 25

District Court

New South Wales

Medium Neutral Citation:

SafeWork NSW v HMR Supplies Pty Ltd [2025] NSWDC 25

Hearing dates:

04 February 2025

Date of orders:

19 February 2025

Decision date:

19 February 2025

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

Penalty – HMR Supplies Pty Ltd

1   HMR Supplies Pty Ltd is convicted.

2 The appropriate fine for the s 32 offence is $150,000.

3   The appropriate fine for the s 38 offence is $5,000.

4   The appropriate fine for the s 39 offence is $5,000.

5   The appropriate fine for the s 43(2) offence is $5,000.

6   The total amount of fines imposed on HMR is $165,000.

Penalty – Mr Campbell

7   Berry Campbell is convicted.

8 The appropriate fine for the s 32 offence is $45,000.

Penalty – Ms Campbell

9    Georgia Campbell is convicted.

10 The appropriate fine for the s 32 is $5,000.

11 The appropriate fine for the s 43(1) offence is $6,000 that will be reduced by 25% to give effect to the plea of guilty. By reference to Ms Campbell’s limited capacity to pay, I will not impose a fine pursuant to s 10A Crimes (Sentencing Procedure) Act 1999.

12   The total amount of fines imposed on Ms Campbell is $5,000.

13   I order that Ms Campbell complete the Certificate IV in Work Health and Safety Course at TAFE NSW on or before 18 February 2026 (the Training Order).

14   I order that Ms Campbell provide evidence of her completion of the Training Order to SafeWork NSW on or before 18 February 2026.

Other Orders

15   I order that the offenders pay the prosecutor’s costs of the proceedings, as agreed or assessed.

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

Catchwords:

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

SENTENCING - objective seriousness - deterrence - aggravating factors - mitigating factors – capacity to pay a fine - appropriate penalty

SENTENCING PRINCIPLES - no record of previous convictions - good prospects of rehabilitation - remorse - plea of guilty - assistance to law enforcement authorities

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999

Fines Act 1996

Work Health and Safety Act 2011

Work Health and Safety Regulation 2017

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:

General Guide for Workplace Traffic Management

SafeWork Australia General Guide for Industrial Lift Trucks (dated 2 July 2014)

SafeWork Australia General Guide for Workplace Traffic Management

SafeWork Australia Traffic Management Information Sheet

SafeWork Forklift Safety Guide (dated 2 March 2020)

SafeWork Forklift Safety, Separation Poster (dated 2 March 2020)

Category:

Sentence

Parties:

SafeWork NSW (Prosecutor)
HMR Supplies Pty Ltd (Offender)
Berry Campbell (Offender)
Georgia Campbell (Offender)

Representation:

Counsel:
M Scott (Prosecutor)
J Peluso (Offenders)

Solicitors:
Legal, Department of Customer Service (Prosecutor)
Leeds Lawyers (Offenders)

File Number(s):

HMR Supplies Pty Ltd
2023/335559; 2023/335566; 2023/335575 and 2023/335581

Berry Campbell
2023/335508

Georgia Campbell
2023/335595 and 2023/335606

Publication restriction:

None

JUDGMENT

Introduction

1. HMR Supplies Pty Ltd (HMR) appears for sentence after pleading guilty to:

1. 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(1) of the Act and thereby exposed Owen Taotua to a risk of death or serious injury;

2. an offence pursuant to s 38 of the Act in that it failed to notify the Regulator immediately after the incident;

3. an offence pursuant to s 39 of the Act in that it failed to ensure that the site where a notifiable incident occurred was not disturbed; and

4. an offence pursuant to s 43(2) of the Act in that it directed and allowed an unauthorised worker, in particular Georgia Campbell, to carry out work at a workplace.

2. The maximum penalty for:

1. the s 32 offence is a fine of 18,128 penalty units ($1,948,216);

2. the s 38 offence is a fine of 607 penalty units ($65,234);

3. the s 39 offence is a fine of 607 penalty units ($65,234); and

4. the s 43(2) offence is a fine of 1,214 penalty units ($130,469).

3. Berry Campbell appears for sentence after pleading 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 Mr Taotua to a risk of death or serious injury. The maximum penalty for the offence is a fine of 3,626 penalty units ($389,686).

4. Georgia Campbell appears for sentence after pleading guilty to:

1. an offence pursuant to s 32 of the Act in that she failed to comply with the health and safety duty she owed pursuant to s 28 of the Act and thereby exposed Mr Taotua to a risk of death or serious injury; and

2. an offence pursuant to s 43(1) of the Act in that she carried out work at a workplace as a person who was not authorised in accordance with the regulations.

5. The maximum penalty for:

1. the s 32 offence is a fine of 1,730 penalty units ($185,923); and

2. the s 43(1) offence is a fine of 243 penalty units ($26,115).

Facts

6. The parties have presented an Agreed Statement of Facts. I have taken the entirety of this document into account in coming to an appropriate sentence. What follows is a brief summary of the facts relevant to the offenders to permit an understanding of the sentence imposed.

Background

7. At all material times HMR was manufacturing, supplying and delivering metal roofing supplies and accessories from its premises in Violet Street, Revesby in New South Wales (the site).

8. Mr Campbell was a director of HMR.

9. Ms Campbell was employed by HMR as the Operation Manager. She commenced working at the site on or about 23 May 2019. Her duties included management and supervision of all operations at the site.

Relevant workers

10. Mr Taotua was employed by HMR as a truck driver. He commenced working at the site on or about 7 July 2022. His duties included loading trucks, driving to various delivery addresses, and unloading orders from the truck.

11. Shannyn Cahill was employed by HMR in a customer service role and as a factory hand. Ms Cahill commenced working at the site on or about 14 March 2022. Her duties included assisting in the factory, processing orders from customers, overseeing the smooth running of the supply of orders, re-stocking shelves, placing orders with suppliers and answering calls from customers and suppliers.

12. George Stojcevski and Xuan Dihn Nguyen were employed by HMR and were on site at the time of the incident. Mr Stojevski and Mr Nguyen both held the relevant forklift licence and operated forklifts at the premises as part of their duties.

The Incident on 13 July 2022

13. On 13 July 2022 there were at least five workers on the site, including Ms Campbell, Mr Taotua, Ms Cahill, Mr Stojcevski and Mr Nguyen.

14. At approximately 2:00pm, Mr Taotua was conducting preparatory works for the stacking and organising of roof panels which were to be loaded onto his truck for delivery (the task). The task was being conducted in the parking lot of the site which was also utilised as a loading dock area (the loading area).

15. Ms Campbell came out to the loading area and began operating a Linde H50 forklift truck (the forklift). She began turning the forklift in a clockwise direction with the rear left wheel moving toward the stacked roofing panels.

16. When the forklift began turning, Mr Taotua was walking alongside the left-hand side of the forklift attempting to place a wooden block under the roofing panels so that the forklift tines could be inserted under the panels.

17. As Ms Campbell turned the forklift, the rear left wheel collided with Mr Taotua's lower left leg and foot.

Injuries

18. As a result of the incident, Mr Taotua sustained a fractured fibula and a syndesmosis injury to his left leg.

19. At approximately 2:03pm, Ms Campbell phoned '000' for an ambulance to attend the site.

20. At approximately 2:21pm, Ms Campbell phoned '000' again to advise that she would be transporting Mr Taotua to hospital privately and requested that the ambulance be cancelled.

21. At approximately 3:23pm, Mr Taotua was admitted to Liverpool Hospital Emergency Department. Mr Taotua underwent surgery to his leg and was discharged from Liverpool Hospital on 15 July 2022.

Notification

22. HMR did not notify SafeWork following the incident. SafeWork was notified of the incident on 18 July 2022 by Mr Taotua.

23. HMR did not have a system in place to notify all notifiable incidents to SafeWork.

Workplace Inspection on 25 July 2022

24. Following Mr Taotua's report, SafeWork Inspectors, Kylie Scott and Mouhamad Dehen, attended the site on 25 July 2022.

25. Inspector Scott observed that the site had been disturbed. The forklift was now located parked in the rear corner of the complex and that the stack of roofing panels had since been re-arranged.

Systems of Work Before the Incident

26. At the time of the incident, HMR had no system of work requiring separation between pedestrians and forklifts.

27. HMR had the following controls in place at the time of the incident to control the risk:

1. warning signs at the entrance to the factory building at the site stating, "Forklifts Operating in Area", "Beware of vehicles";

2. a Forklift prestart checklist document;

3. provision of a company induction to its workers on commencement of employment, including a Vehicle Safety Policy;

4. access to the Linde H5OT Operating Instructions Manual for the forklift involved in the incident;

5. a schedule of regular servicing of the forklift involved in the incident; and

6. new employees are provided with a company induction within 14 days of commencing employment.

28. HMR was aware that forklifts were being operated at the site by workers who did not hold the relevant high risk work licence (HRWL) and did not provide workers with any specific instruction or training on operating a forklift in the vicinity of pedestrians.

29. Ms Campbell and Ms Cahill did not hold the relevant HRWL to operate or supervise the operation of a forklift at the time of the incident.

Systems of Work After the Incident

30. Following the incident, HMR took the following actions:

1. Ms Campbell and Ms Cahill were enrolled in and completed a forklift training course, with each receiving the relevant HRWL on 20 July 2022 (within seven days of the incident);

2. a review of the incident was undertaken by viewing the CCTV;

3. an “Incident in the Workplace” procedure was developed;

4. a register of forklift licences held by workers was introduced; and

5. a system of placing witches hats in the carpark to isolate the forklift from pedestrians while in operation was developed and implemented.

Legislation and Guidance Material available at the time of the Incident

31. Clause 203 of the Work Health and Safety Regulation 2017 (the Regulation) provides that a person with management or control of plant at a workplace must manage risks to health and safety associated with plant, in accordance with Part 3.1 of the Regulation.

32. Clause 214 of the Regulation states:

Powered mobile plant - general control of risk

The person with management or control of powered mobile plant at a workplace must in accordance with Part 3.1, manage risks to health and safety associated with the following:

(d) the plant colliding with any person or thing.

33. Clause 215 of the Regulation provides:

Powered mobile plant - specific control measures

(1)    This clause applies to a person with management or control of powered mobile plant at a workplace.

…

(4)    The person must ensure that the plant does not collide with pedestrians or other powered mobile plant.

…

(5)    Without limiting sub-clause (4), if there is a possibility of the plant colliding with pedestrians or other powered mobile plant, the person must ensure that the plant has a warning device that will warn persons who may be at risk from the movement of the plant.

34. Clause 81 of the Regulation provides:

Licence required to carry out high risk work

A person must not carry out a class of high risk work unless the person holds a high risk work licence for that class of high risk work, except as provided in clause 82.

35. Schedule 3 of the Regulation provides the various classes of high risk work in which require a HRWL. Item 24 of Schedule 3 provides that workers carrying out work with forklift trucks require a relevant HRWL to perform such work.

36. The SafeWork Forklift Safety Guide (dated 2 March 2020) states:

If you work near forklifts, you are equally at risk from being killed or seriously injured through being hit or crushed by the forklift or being hit or crushed by the load the forklift is moving.

You are most at risk of being hit by a forklift or its load if you are:

• Walking alongside it
• Picking stock off a nearby shelf
• Walking in between it and a delivery vehicle
• Stepping in to its path, or
• Assisting with loading/unloading

…

Always follow the site safety rules, traffic management plan and safety instructions from your employer.

37. The SafeWork Forklift Safety, Separation Poster (dated 2 March 2020) states:

Keep forklifts and pedestrians separated.

Most forklift incidents involve pedestrians. Prevent forklift related injuries by keeping forklifts and people separated with clear, separate areas.

38. The SafeWork Australia General Guide for Industrial Lift Trucks (dated 2 July 2014) provides information about managing health and safety risks for people who carry out activities involving industrial lift trucks. It states:

Traffic Management

Industrial lift trucks must not collide with pedestrians or other powered mobile plant. If there is a possibility of an industrial lift truck colliding with pedestrians or other vehicles you:

Must ensure the industrial lift truck has a warning device that will warn people of the movement of the industrial lift truck e.g. a horn or reversing alarms

Should set up the workplace so industrial lift trucks, pedestrians and other vehicles are separated and their paths do not cross

Should provide dedicated loading and unloading areas

Work areas should be designed and maintained so industrial lift trucks can be operated safely. Some of the control measures to consider and how they can be used are listed in Table 2.

Table 2

Control Measures	Examples of how to use control measures
Barricades	Separating pedestrians and traffic areas with physical barriers can prevent pedestrians entering areas where industrial lit trucks are working

39. The SafeWork Australia Traffic Management Information Sheet provides advice for small businesses and workers on managing traffic risks in the workplace. The Information Sheet states:

Where there are vehicles including cars, trucks and forklifts at your workplace, there is a risk they will collide with people. People who work with or near vehicles are most at risk.
…

Keeping people and vehicles apart

PCBUs must first consider substituting and isolating hazards and using engineering controls, so far as is reasonably practicable, for example by:
…

Using physical barriers like gates, fences, bollards or temporary barriers to separate vehicles from people

Creating clearly marked exclusion zones such as forklift-only areas in loading bays …

Loading and unloading areas

A PCBU can manage loading and unloading safely by:

Designating pedestrian exclusion zones in loading and unloading areas which are clearly marked with signs, reflective paint and witches hats, or separated using physical barriers such as chains or bollards

Using signage, lights, alarms and horns to warn pedestrians and vehicle drivers that loading is in progress, and

Implementing clear and effective operation procedures to protect the driver and plant operator

40. Prior to the incident, SafeWork published the Code of Practice “Managing the Risks of Plant in the Workplace” (the “Plant Code”). The Plant Code was published and available to HMR. The Plant Code requires PCBU's to consider and assess the risks associated with identified hazards in the workplace, including pedestrian traffic around the plant. The Plant Code suggests the usage of warning devices on plant if there is a possibility of the plant colliding with pedestrians or other powered mobile plant. Examples of warning devices include automatic audible alarms, motion sensors, flashing lights, and radio sensing devices.

41. Prior to the incident, SafeWork Australia published the “General Guide for Workplace Traffic Management” (the “Traffic Management Guide”). The Traffic Management Guide was published and available to HMR at the time of the incident. The Traffic Management Guide describes the importance of the use of exclusion zones to separate powered mobile plant, such as forklifts, from people. The Traffic Management Guide also provides examples of reasonably practicable traffic control measures including providing high-visibility or reflective clothing for workers and plant operators, use of radios and other communication systems, fixing mirrors at blind corners, and fitting refractive lenses on rear windows to help drivers see "blind spots".

42. Prior to the incident, SafeWork Australia published the “General Guide for Industrial Lift Trucks” (the “Industrial Trucks Guide”). The Industrial Trucks Guide was published and available to HMR at the time of the incident. The Industrial Trucks Guide reiterates the legal requirement that a person who operates a forklift truck must hold the relevant HRWL.

Prior Convictions

43. The offenders have no previous convictions for breaches of the Act.

Offenders’ Case on Sentence

44. HMR read and relied upon the affidavits of Mr Campbell, affirmed on 21 January 2025, and of Ms Campbell, affirmed on 22 January 2025. The following is a summary of their evidence.

HMR

45. HMR was first registered on 5 March 1975 and currently employs 10 individuals. It is a small family-owned business operating in a highly competitive industry.

Mr Campbell

46. Mr Campbell is a director of HMR and is 56 years of age. He has over 25 years of experience in the roofing industry and is responsible for the management and finances of HMR. He is regularly in the office, except when meeting with clients. He is also a member of the Metal Roofing and Cladding Association.

Ms Campbell

47. Ms Campbell is 30 years of age. She has been employed by HMR since May 2019. Her father, Mr Campbell, is a director of the company. Prior to her full-time employment with HMR, she worked part-time and unpaid, learning about the business while also employed as an assistant-in-nursing at Long Bay Prison Hospital.

48. She began her role at HMR in administration in 2019, later transitioning into counter sales and factory hand. In or around 2021, she was appointed as operations manager. Her current duties involve directing and supervising operations on site, as well as monitoring and enforcing Work Health and Safety (WHS) compliance.

Induction and Training

49. Mr Campbell stated in his affidavit that Mr Taotua had been inducted by Mr Stojcevski and Ms Campbell at the start of his employment. Whilst he was still in the process of induction and training, the WHS component has been finalised.

50. Ms Campbell stated in her affidavit that it was her responsibility to induct Mr Taotua onto the site. The WHS induction was the first component of his training and had been completed. He was in the process of receiving further training, but he had only recently commenced work for HMR.

Remorse and Contrition

51. HMR prides itself on being a responsible corporate citizen. It acknowledges that its previous practices were inadequate. The incident has served as a significant wake-up call.

52. Mr Campbell deeply regrets the injury sustained by Mr Taotua, which was preventable. He accepts that there should have been better work systems in place to separate pedestrians from forklifts.

51. Ms Campbell stated that she will never forget the tragic events of 22 July 2022 and the serious injury she caused to Mr Taotua. She deeply regrets her actions and is extremely sorry for what occurred. She realizes that the incident could have been catastrophic. She was in regular contact with Mr Taotua for approximately six months after the incident to enquire about his recovery.

52. She also stated that she thinks about the incident daily when she arrives at work, and it continues to weigh heavily on her mind. She now understands that workplace safety must be the paramount priority, and this has become her primary focus.

Offence pursuant to s 32 of the Act (HMR & Mr Campbell)

55. Mr Campbell accepts responsibility, as the director of the company, for ensuring compliance with WHS regulations to protect both their employees and the public.

Offence pursuant to s 38 of the Act (HMR)

56. Mr Campbell stated that he was not on site on 13 July 2022 at the time of the incident. He was informed by Ms Campbell later that evening and by the time he was notified, Mr Taotua had already been taken to the hospital, and the forklift and load had been moved.

57. He further stated that at the time, they did not suspect that Mr Taotua had sustained a major injury. He now realizes that the incident should have been immediately reported to SafeWork and that such failure to do so was due to naivety on his part and that of HMR, which has since been addressed through additional training.

58. HMR’s staff member, Toula Ergos, who was responsible for insurance and compliance was on leave that day. At the time, Ms Campbell had not been adequately trained on HMR’s reporting obligations.

Offence pursuant to s 39 of the Act (HMR)

59. Mr Campbell explained that the incident occurred in a public car park that is accessible by other tenants of the complex. The load Mr Taotua was adjacent to, had been temporarily stored and was in the process of being moved to clear the driveway.

60. He conceded that HMR should have preserved the site but deposed that any changes made were not done with the intention of obstructing investigations. HMR acted to ensure that materials were placed in a safe location to prevent further incidents. HMR was aware that the entire incident was captured on CCTV and provided the footage to SafeWork when requested.

Offence pursuant to s 43(2) of the Act (HMR)

61. Mr Campbell expressed “being at a loss” as to why Ms Campbell operated a forklift without a licence, especially when other staff members present were qualified to do so. He stated that had he been aware, he would have immediately prohibited her from operating it. Ms Campbell received a formal warning regarding this matter and was placed on a management plan.

Offence pursuant to s 32 of the Act (Ms Campbell)

62. Ms Campbell stated that when the incident occurred, she was in the process of moving a load of material, which was a minor task. The forklift was equipped with a flashing light and a reversing alarm. At the time of the collision the vehicle was moving forward, and the alarm and light were not activated.

63. Prior to commencing the task, Ms Campbell discussed a strategy with Mr Taotua regarding how they would load the truck. She deposed that at no point did she see that he had approached the rear of the forklift.

64. The designated spotter for the task could not see Mr Taotua at the time of the collision because he was positioned behind the forklift.

65. After the incident, Ms Campbell immediately stopped operating the forklift and attempted to render aid to Mr Taotua. She was in a state of panic and could not think clearly. While she did not observe any visible injuries to Mr Taotua, she understood that he was in pain.

66. After requesting an ambulance and describing the injury to emergency services, she was informed that it might take up to three hours for them to attend, as they did not initially assess the injury as serious. Dissatisfied with this response, she decided to drive Mr Taotua to the hospital herself. She also notified his next of kin, and his daughter met them at the hospital.

67. In hindsight, Ms Campbell admitted that she should have informed SafeWork immediately after the incident. She stated that it was never her intention to conceal the event from the authorities.

68. Further she deposed that she moved the load and forklift to facilitate vehicle access to a shared public area, but she did so on her own accord. She now understands that any reportable incident should be immediately disclosed to SafeWork, and the site should remain undisturbed for investigation. She knew that the incident would have been captured on high-definition CCTV.

Offence pursuant to s 43(1) of the Act (Ms Campbell)

69. Ms Campbell acknowledged that she should not have operated the forklift under any circumstances without possessing a HRWL. She made no excuses for her actions.

70. She admitted that her decision to operate the forklift was a grave lapse in judgement. She should have asked a qualified and licensed employee to do so.

Changes made following the incident (HMR)

71. On 14 July 2022 HMR held a toolbox talk with all staff to address any shortcomings by the company and to implement immediate measures to manage and mitigate risks on site.

72. Since the incident, HMR has taken measures to rectify the breaches that took place in the incident and further extensive changes to its operations and safety protocol including the following:

1. commissioning an independent professional site assessment by Area Safe Pty Ltd to recommend additional safety equipment for the workplace. HMR adopted and implemented the recommendations of the report but purchased and installed the goods specified independently, to save costs;

2. updating its Safe Work Method Statements for all operations;

3. updating its Standard Operating Procedure for forklifts;

4. training Ms Campbell to serve as the designated Work Health and Safety Officer, with a second-in- charge during her time at TAFE;

5. enrolling Ms Campbell and Mr Campbell in a Certificate IV in Work Health and Safety, which is due to be completed by 31 August 2025;

6. Ms Campbell and Mr Campbell completing a Work Health and Safety Due Diligence course;

7. developing and implementing an incident reporting policy, for which all staff has received training;

8. creating a forklift operations and risk elimination manual, which all staff have been trained on;

9. erecting temporary barriers to create an exclusion zone for pedestrians and vehicles during forklift operations;

10. installing blue spotlights on each forklift which activate when reversing, and adding laser beams on the front and rear to indicate the forklift's path of travel;

11. installing removable barriers across the factory doors;

12. establishing a written register for all staff members who hold a forklift licence;

13. ensuring that all employees on the workshop floor now hold a forklift and HRWL;

14. prohibiting any employee without a valid forklift licence or HRWL from operating a forklift;

15. ensuring all forklift keys are now securely held by a licensed forklift driver or otherwise kept in a safe location to prevent unauthorized use;

16. enforcing a 3-metre rule, requiring all personnel assisting with forklift operations or loading, to remain at least 3 metres away from the forklift, as indicated by visible red laser lines around the forklift;

17. implementing a site-specific traffic management control system;

18. conducting weekly toolbox talks to discuss safety and encourage open communication regarding concerns;

19. using a spotter where possible, when moving loads;

20. upgrading the safety signage on the site; and

21. performing on-site risk assessments twice a year.

73. Mr Campbell stated that these changes came at significant cost, exceeding $40,000. He also deposed that these comprehensive improvements should ensure safety of all persons in the future and there have been no further safety incidents.

Changes made following the incident (Ms Campbell)

74. Ms Campbell obtained her forklift licence following the incident. She is now the designated WHS officer on the shop floor and on-site. When she is not present, she has trained Ms Cahill to be her second-in-charge with respect to WHS monitoring and compliance. Ms Cahill reports directly to her. Either Ms Campbell or Ms Cahill are always present on the floor and quite often they are both present together.

75. Every day prior to commencing work, temporary barriers are placed in the loading area to clearly designate a pedestrian zone and establish an operational exclusion zone for forklifts and other vehicles. Works cannot commence until the exclusion zone is set up, and this directive is communicated to all staff.

76. Ms Campbell has access to the employee register which details each employee's licences. Forklift keys are restricted to authorized individuals only.

77. She ensures that all individuals working on and around the factory floor wear the appropriate personal protective equipment (PPE).

78. The SafeWork website has been her primary reference for all safety-related information. If she is unsure about any matters, she contacts their helpline. She is also subscribed to the SafeWork newsletters, including SafeWork Wrap Monthly, Mentally Healthy Workplaces, Health Care and Social Assistance Quarterly, and the MSD newsletters.

79. She is aware that SafeWork will be seeking an order requiring her to complete a Certificate IV in WHS. She has already spoken with TAFE, who have informed her that she will complete a Certificate Ill in WHS as part of her apprenticeship in fabrication and welding. She is currently in the second year of her apprenticeship which includes receiving up-to-date training on safe work practices weekly whilst in term.

80. She is actively enrolled in the Certificate IV program, which she is working diligently to complete within the next six months. Given her responsibilities at work, her children, and her apprenticeship, this process has been challenging. However, she is committed to finishing it as soon as possible. She understands the importance of receiving the best education on safe work practices, which will benefit her personal development and help HMR establish solid safety plans and procedures to reduce risk.

Consideration

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

Objective Seriousness

82. The offences involve some objective gravity.

83. I have taken into account the maximum penalty for each offence.

84. The injuries sustained by Mr Taotua are an aggravating feature of the s 32 offences.

HMR

85. In relation to the s 32 offence, HMR was aware of the risk of forklifts colliding with pedestrians and had taken some steps to warn workers and visitors to the site of the risk, but to comply with its duty, it was required to do more. There was a large volume of guidance material available to HMR at the time of the incident, suggesting the use of warning devices, traffic control measures, exclusion zones and more. By its plea of guilty, HMR admitted that it failed to take the reasonably practicable steps identified in the Summons. The likelihood of the risk coming home was moderate if appropriate measures were not taken. The potential consequences of the risk included a risk of death. The steps that could have been taken to eliminate or minimise the risk were simple, well-known in the industry and inexpensive.

86. In relation to the s 38 offence, HMR failed to report the incident to SafeWork because it did not have in place a system to do so and because it had not adequately trained its workers on the need to report notifiable events. An appropriate system could have been easily devised and implemented, and appropriate training could have been provided to the workers, as was demonstrated by HMR’s post-incident conduct. Mr Taotua reported the incident about five days after it occurred. The offence is mitigated by the fact that HMR recorded and kept high quality CCTV footage of the incident, and the investigation of the incident was not hampered by the failure to notify SafeWork of the incident immediately after it occurred.

87. In relation to the s 39 offence, the scene of the incident was not preserved because HMR’s workers were inadequately trained on the need to do so. The training required as to how to respond to incidents would not have been burdensome for HMR to provide. The offence is mitigated by the fact that HMR recorded and kept high quality CCTV footage of the incident, and the investigation of the incident was not hampered by the failure to notify SafeWork of the incident immediately after it occurred.

88. In relation to the s 43(2) offence, the decision of Ms Campbell to operate the forklift occurred spontaneously and HMR’s ability to respond to that decision was limited. HMR was required to have implemented a more comprehensive system of training to deter those kinds of decisions by workers.

Berry Campbell

89. As a director of HMR, Mr Campbell failed to exercise due diligence to be aware of the control measures and systems that should have been implemented by HMR, prior to the incident to ensure the safety of its workers, in so far as that was reasonably practicable. The s 27 duty requires those with the authority of a PCBU to take action to ensure that a PCBU can comply with its duties under the legislation. There was ample guidance material available that set out the necessary control measures that HMR could have implemented. Mr Campbell should have known that the consequences of an incident could be serious for one of HMR’s workers.

Georgia Campbell

90. In relation to the s 32 offence, Ms Campbell should not have operated the forklift when she was not authorised to do so because she did not have a HRWL and when other licensed workers were available to do so. In addition she failed to properly supervise the work and to adequately train Mr Taotua. The risk posed to Mr Taotua by Ms Campbell’s operation of the forklift was obvious. The steps she could have taken to avoid it were simple and convenient. Ms Campbell’s conduct fell well short of the standard of care required of a supervisor.

91. In relation to the s 43(1) offence, Ms Campbell knew that she was not authorised to operate the forklift. The task was a simple one, but it still required the exercise of reasonable care which in this case included that the forklift should only have been operated by a worker with a HRWL.

Deterrence

92. The penalty imposed in relation to the offences must provide for general deterrence. PCBUs must take the obligations imposed by the Act very seriously. The community is entitled to expect that both small and large businesses 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].

93. There is some need for specific deterrence in this case. HMR still operates a business that potentially exposes workers and visitors to its premises to risks as a result of its operation. Mr Campbell and Ms Campbell still manage its day-to-day functions. Conversely, the offenders have taken comprehensive and timely steps to improve its processes and safety systems as a result of the incident.

Aggravating factors

94. The injury, harm and loss caused by the offence 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 merely the creation of a risk of death or serious injury. In this case, the injuries sustained by Mr Taotua are sufficient to establish the aggravating factor.

Mitigating factors

95. The offenders do not have any previous convictions: ss 21A(3)(e) Crimes (Sentencing Procedure) Act 1999. HMR was first registered on 5 March 1975. Mr Campbell was aged 53 at the date of the incident. Ms Campbell was aged 28 at the date of the incident.

96. The offenders have good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. The offenders have taken steps to respond to the incident and have demonstrated that they have goods prospects of rehabilitation.

97. The offenders have demonstrated remorse: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. The offenders have accepted responsibility for their respective failings and expressed remorse for the incident. I accept the statements of Ms Campbell and Mr Campbell to be genuine expressions of contrition. The pleas of guilty also indicate remorse.

98. The offenders entered a plea of guilty: s 21A(3)(k) and s 22 Crimes (Sentencing Procedure) Act 1999. The offenders are 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 for each offender is 25%.

99. The offenders co-operated with the investigation conducted by SafeWork: s 21A(3)(m) Crimes (Sentencing Procedure) Act 1999.

Totality

100. The principle of totality is applicable to the penalties to be imposed on HMR and Ms Campbell to a lesser extent.

Capacity to Pay a Fine

101. The Court is required to have regard to s 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.

102. HMR and Mr Campbell did not contend that they had a limited capacity to pay a fine.

103. Ms Campbell has demonstrated a limited capacity to pay a fine. She is a single mother with two children, aged three and two. Her youngest child was born prematurely and suffered a pneumothorax and a collapsed lung. She currently earns approximately $96,000 per year and does not own any shares or a motor vehicle or real estate and currently rents a property where she resides with her children. She has savings of less than $1,500. Aside from her salary and the provision of a motor vehicle, she does not receive any other financial or non-financial benefits from her employment with HMR. Her TAFE fees related to her apprenticeship are subsidized by the government and she owes approximately $25,500 to the Australian Taxation Office for overdue income tax, as well as loans related to her education.

Penalty – HMR

104. HMR Supplies Pty Ltd is convicted.

105. The appropriate fine for the s 32 offence is $200,000 that will be reduced by 25% to give effect to the plea of guilty. I impose a fine of $150,000.

106. The appropriate fine for the s 38 offence is $10,000 that will be reduced by 25% to give effect to the plea of guilty and by a further $2,500 to give effect to the principle of totality. I impose a fine of $5,000.

107. The appropriate fine for the s 39 offence is $10,000 that will be reduced by 25% to give effect to the plea of guilty and by a further $2,500 to give effect to the principle of totality. I impose a fine of $5,000.

108. The appropriate fine for the s 43(2) offence is $24,000 that will be reduced by 25% to give effect to the plea of guilty and by a further $13,000 to give effect to the principle of totality. I impose a fine of $5,000.

109. The total amount of fines imposed on HMR is $165,000.

Penalty – Mr Campbell

110. Berry Campbell is convicted.

111. The appropriate fine for the s 32 offence is $60,000 that will be reduced by 25% to give effect to the plea of guilty. I impose a fine of $45,000.

Penalty – Ms Campbell

112. Georgia Campbell is convicted.

113. The appropriate fine for the s 32 offence is $20,000 that will be reduced by 25% to give effect to the plea of guilty and by a further $10,000 to reflect Ms Campbell’s limited capacity to pay. I impose a fine of $5,000.

114. The appropriate fine for the s 43(1) offence is $6,000 that will be reduced by 25% to give effect to the plea of guilty. By reference to Ms Campbell’s limited capacity to pay, I will not impose a fine pursuant to s 10A Crimes (Sentencing Procedure) Act 1999.

115. The total amount of fines imposed on Ms Campbell is $5,000.

116. I order that Ms Campbell complete the Certificate IV in Work Health and Safety Course at TAFE NSW on or before 18 February 2026 (the Training Order).

117. I order that Ms Campbell provide evidence of her completion of the Training Order to SafeWork NSW on or before 18 February 2026.

Other Orders

118. I order that the offenders pay the prosecutor’s costs of the proceedings, as agreed or assessed.

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

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Decision last updated: 20 February 2025