SafeWork NSW v Karl O'Sullivan

[2024] NSWDC 142

District Court

New South Wales

Medium Neutral Citation:

SafeWork NSW v Karl O’Sullivan [2024] NSWDC 142

Hearing dates:

17 April 2024

Date of orders:

1 May 2024

Decision date:

01 May 2024

Jurisdiction:

Criminal

Before:

Russell SC DCJ

Decision:

(1)   Karl O’Sullivan was convicted on 17 April 2024.

(2)   The appropriate fine is $10,000 but that will be reduced by 25% to reflect the early plea of guilty.

(3)   Order Karl O’Sullivan to pay a fine of $7,500.

(4) Order pursuant to Section 122(2) of the Fines Act 1996 (NSW) that 50% of the fine is to be paid to the prosecutor.

(5)   Order Karl O’Sullivan to pay the prosecutor’s costs.

Catchwords:

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

SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence – capacity to pay appropriate penalty – victim impact statement – totality

COSTS – prosecution costs

OTHER – forklift crushed truck driver pedestrian at worksite – forklift parked on a slope – forklift rolled down slope – forklift handbrake not applied – forklift engine not turned off – forklift steer wheels left on an angle – forklift wheels not chocked – forklift tynes not lowered – fatal injuries

Legislation Cited:

Crimes Act 1900 (NSW) ss 18, 52A

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 7, 21A, 22, 26, 27, 28, 30A, 30B, 30D, 30E

Fines Act 1996 (NSW), ss 6, 122

Work Health and Safety Act 2011 (NSW), ss 3, 28, 32, 171

Cases Cited:

Baumer v R [1988] HCA 67; (1988) 166 CLR 51

Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338

BW v R [2011] NSWCCA 176

Camilleri’s Stock Feeds Pty Ltd v EPA (1993) 32 NSWLR 683

Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610

Hesketh v R [2021] NSWCCA; (2021) 106 NSWLR 200

Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616

Mahdi Jahandideh v The Queen [2014] NSWCCA 178

Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59

Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120

Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96

Pearce v The Queen (1998) 194 CLR 610

R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566

R v Wilkinson (No. 5) [2009] NSWSC 432

Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266

Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465

Texts Cited:

Australian Standard AS2359.2 Powered Industrial Trucks, 2013

Safe Work Australia General Guide for Industrial Lift Trucks, July 2014

Safe Work Australia General Guide for Workplace Traffic Management, July 2014

SafeWork NSW Safety Alert, Uncontrolled Movement of Vehicles, 5 December 2017

Category:

Sentence

Parties:

SafeWork NSW (Prosecutor)
Karl O’Sullivan (Defendant)

Representation:

Counsel:
C Magee (Prosecutor)
E Beljic (Defendant)

Solicitors:
Department of Customer Service (Prosecutor)
Anderson Boemi Lawyers (Defendant)

File Number(s):

2023/23756

Judgment

1. On 1 February 2021 while Mr Baljinder Singh was strapping and securing the load on his truck in a loading bay, a forklift operated by Mr Karl O’Sullivan rolled down a sloped driveway, crushing Mr Singh between the forklift and the tray of his truck. Mr Singh sustained fatal injuries.

2. Mr O’Sullivan has pleaded guilty to an offence that as a person who had a work health and safety duty pursuant to s 28(b) of the Work Health and Safety Act 2011 (NSW) (the WHS Act) he failed to comply with that duty and thereby exposed Mr Singh to a risk of death or serious injury contrary to s 32 of the WHS Act.

3. Section 28(b) of the WHS Act provides:

“While at work, a worker must--

…

(b) take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons.”

4. The maximum penalty for the offence is a fine of $176,460.

The Risk

5. The risk described in par 16 of Annexure A to the Amended Summons is as follows:

“The risk was of other persons, in particular Mr Singh, suffering serious injury or death as a result of being struck and/or crushed by rolling or moving unattended forklifts at the site.”

Reasonably Practicable Measures

6. Paragraph 17 of Annexure A to the Amended Summons pleads particulars of the defendant’s failure to comply with the duty under s 28(b) of the WHS Act as follows:

“The defendant, while carrying out work for John Cook’s business or undertaking at the site, failed to take reasonable care that one or more of the following of his acts or omissions did not adversely affect the health and safety of other persons, in particular Mr Singh, in that the defendant:

a. failed to park the forklift on level ground;

b. failed to park the forklift horizontal to the slope of the driveway of the loading area;

c. failed to turn the steering of the forklift so that the rear (steer) tyres of the forklift were on a 45-degree angle to the main body of the forklift;

d. failed to apply the park brake prior to leaving the forklift unattended;

e. failed to lower the tynes on the forklift to the ground before leaving it unattended;

f. failed to place a ‘chock’ behind the rear (steer) tyres of the forklift to prevent the forklift rolling backwards while it was unattended.”

Background

7. The parties presented an Agreed Statement of Facts and this material is summarised below.

8. Mr O’Sullivan was employed as a yard supervisor/forklift truck operator by John Cook & Sons Pty Ltd (John Cook).

9. John Cook provided timber distribution to the wholesale market from warehouses located in St Marys, New South Wales (the Site).

10. The forklifts owned by John Cook included a Nissan forklift model #JIF4A45DU (the forklift). The forklift unladen weighed 7.6 tonnes.

11. Kang Trans Pty Ltd (Kang Trans) was contracted pursuant to a verbal agreement in or about 2017 to provide transportation services when required to John Cook. It was a term of this verbal agreement that Kang Trans would provide the services of sub-contractor truck drivers to John Cook when required to fulfil the verbal agreement.

12. Mr Singh was an owner-driver who performed truck driving services for the company Hansra Trans Pty Ltd (Hansra Trans). Mr Singh was 40 years of age and married with three children aged 13, 11 and 3.

13. Hansra Trans provided truck driving services to Kang Trans under a verbal agreement that was entered into between the companies in or about 2019.

14. Through Hansra Trans, Mr Singh provided truck driving services to John Cook. Mr Singh drove a UD flatbed truck (the truck).

15. Mr O’Sullivan commenced employment at John Cook in or about September 2006. He was the yard supervisor. Mr O’Sullivan’s duties and responsibilities included co-ordinating the staging of loads and undertaking and supervising forklift operations. Mr O’Sullivan led a team of five people and spent approximately 95% of his time in the yard. His role as yard supervisor included providing daily supervision to his team.

16. Part of his role included checking for hazards in the yard at the site and developing and implementing safe operating procedures (SOPs) relating to traffic management, forklifts and other plant and systems.

17. Mr O’Sullivan held a LF class high risk work licence for operating forklifts, which was issued on 2 October 2007. After the incident his licence was cancelled.

18. Mr Conor Bradford was employed as a transport coordinator and leading hand. Mr Bradford had previously been employed by John Cook as a forklift driver and labourer. Mr Bradford held a LF class high risk work licence for operating forklifts.

19. Mr O’Sullivan reported to Mr Richard Funaki, who was employed by John Cook as the operations manager at the Site. The responsibilities of the operations manager included the scheduling of loading and unloading and overseeing safe transport operations. Mr Funaki had commenced this position on or about 2 November 2020.

20. At the date of the incident, Mr Funaki had been employed by John Cook for about six years. Prior to acting as operations manager, Mr Funaki had been employed as yard supervisor from January to October 2020. Mr Funaki had been employed as a yard team member from February 2015 to mid-2017, then as dispatch co-ordinator.

21. At all material times Mr Michael Dryburgh was employed as business manager at John Cook. Mr Dryburgh had occupied this position since 27 January 2020. Mr Dryburgh was responsible for the overall supervision of Mr Funaki and indirectly supervised Mr O’Sullivan.

The Site

22. The Site consisted of two warehouses (also known as sheds) separated by a concrete roadway approximately 20 metres wide, on which five loading/unloading bays were marked.

23. Timber stock for transportation were stored in the warehouses. Forklifts owned by John Cook moved the timber in and out of the warehouses.

24. Forklift drivers would “stage loads” in the loading bays in anticipation of truck drivers arriving at the Site to be loaded. The staging of loads included a forklift operator working in the main warehouse pulling out timber packs and applying consignment tags.

25. To complete this task, forklift operators drove through the warehouse to locate the timber packs, stop the forklift and leave the forklift unattended to apply a consignment tag to the load. It was common for John Cook forklift operators to leave the forklift’s engine running while carrying out this task. John Cook forklift operators did not always apply the park brake of the forklift when they alighted from the forklift while undertaking this task.

26. Semi-trailers entered the Site from an entrance on Links Road, which heavy vehicles used as their exit from the Site.

27. Before entering the yard, truck drivers were required to report to the Despatch Office to collect their delivery paperwork.

28. Once the truck driver had collected their paperwork they parked their truck in one of the five loading bays for loading or unloading by the John Cook forklift operators.

29. There was a yellow barrier erected outside the “old shed” (the shed closest to Links Road) which was a safe zone for truck drivers. Truck drivers were to remain in the cabin of their truck or within the safe zone while their truck was being loaded or unloaded.

30. Once loading was complete, the truck drivers proceeded to the location of their trucks in the loading bays to strap and secure the load on their trucks.

31. While truck drivers were securing and strapping their loads in the loading bays, forklift trucks operated by John Cook workers continued to operate and stage loads in the loading bays in anticipation of further truck drivers arriving at the Site to be loaded.

32. John Cook did not require forklift operators or truck drivers to erect the temporary physical barriers around the perimeter of the loading bay that separated the truck drivers from powered mobile plant, including forklift trucks, prior to the truck driver commencing and while slinging or strapping their loads.

33. After they had secured their loads, truck drivers collected further paperwork from the Despatch Office and then proceeded to exit the Site.

The Incident

34. On 1 February 2021, Mr O’Sullivan had been operating the forklift in the main warehouse, pulling out timber packs and applying consignment tags.

35. To complete this task Mr O’Sullivan drove through the warehouse to locate the timber packs, stopped his forklift and left it to apply a tag to the load. Mr O’Sullivan left the forklift engine running while carrying out this task.

36. On 1 February 2021 at the start of the day’s shift, Mr O’Sullivan did not check the forklift’s brakes as part of his pre-start check and did not complete the forklift checklist book.

37. On 1 February 2021 Mr Singh attended the Site at about midday to collect a load for delivery in his truck. Mr Singh parked the truck in “loading bay 3”.

38. Mr Bradford started his shift at midday that day. Mr Bradford’s office was occupied, so he began assisting forklift operators.

39. Mr Singh had been waiting for his truck to be loaded, so Mr Bradford collected Mr Singh’s paperwork and loaded packs onto the truck. This took about 30 minutes. Mr Bradford then went into the office to despatch another load.

40. After Mr Bradford left, Mr Singh began tying down his load on the truck.

41. At around 12.35pm Mr O’Sullivan parked his forklift approximately 4-6 metres from the location where Mr Singh was tying down the load on his truck.

42. The forklift was parked in line with the cabin of Mr Singh’s truck. The driveway surface at that location had a slope of approximately 2.6 degrees (approximate 5% slope) from the forklift down to Mr Singh’s parked truck.

43. The forklift was facing away from Mr Singh’s truck. The tynes of the forklift were not lowered and were approximately one metre from the ground. Mr O’Sullivan did not turn the steering wheel of the forklift on a 45-degree angle.

44. Mr O’Sullivan did not apply the prominently positioned handbrake lever situated on the left-hand side of the forklift’s cab before alighting from the forklift to apply consignment tags to timber packs. Mr O’Sullivan did not remove the keys from the forklift’s ignition while leaving it unattended. Mr O’Sullivan did not place a “chock” behind the rear wheels of the forklift truck.

45. Mr O’Sullivan was holding paperwork in his hand as he alighted from the forklift and he then walked towards consignments of packed timber about 10 metres away.

46. At that time Mr Singh was kneeling beside the truck retrieving straps from a storage cage on the nearside of the truck. Mr Singh was clearly visible beside the truck and was wearing an orange hi-vis worktop.

47. There were no objects or building materials between the forklift and the truck. The rear tyres (steer tyres) of the forklift were at an angle to the main cabin of the forklift, causing the forklift tyres to be angled towards Mr Singh’s truck.

48. Approximately five seconds after Mr O’Sullivan stepped off the forklift, the back of the forklift swung around and rolled backwards down the slope towards Mr Singh’s truck.

49. The forklift increased speed as it travelled rearwards directly towards the truck. At this time, Mr Singh was kneeling on the near side of the truck attending to strapping the load.

50. The rear of the forklift collided with Mr Singh’s head and torso and shook the truck upon impact. The impact caused Mr Singh to be crushed between the forklift and the tray of the truck.

51. Mr Singh sustained significant injuries to his head and brain and is believed to have died instantly.

52. The forklift truck came to a rest at a roughly 90-degree angle to the tray of the truck.

53. Mr William Stone, a forklift operator employed by John Cook, noticed the rear of the forklift up against the truck and shouted out to Mr O’Sullivan.

54. Mr O’Sullivan rushed to the forklift, stepped on to the forklift and drove it forward approximately 1.5-2.0 metres. Mr O’Sullivan applied the forklift’s handbrake and stepped off the forklift. The forklift did not move rearwards after that point in time.

55. Five minutes later Mr O’Sullivan placed a piece of timber behind one of the forklift’s back wheels to chock that wheel.

56. Emergency services were contacted and attended shortly thereafter. The deceased was pronounced “life extinct” at 1.00pm by paramedics.

Injuries

57. Mr Singh’s head was crushed between the back of the forklift and the tray of the truck. Mr Singh sustained fatal injuries.

Systems of Work Before the Incident

John Cook Safe Operating Procedure – Forklift

58. At the time of the incident, John Cook had in place a “Safe Operating Procedure – Forklift” (SOP – Forklift), created in or about August 2007 and reviewed in June 2016. The SOP – Forklift relevantly provided:

1. Forklift drivers must carry out a safety check on the forklift before operation, including its brakes, horn, oil, and water.

2. Remove key when forklift is unattended.

59. Mr O’Sullivan had signed the SOP – Forklift on 3 December 2008.

60. Before the incident forklift drivers did not always remove the key from a forklift when leaving the forklift unattended. Some forklift drivers left the engine running while it was unattended.

61. Managers, supervisors and foremen employed by John Cook, including Mr O’Sullivan, did not adequately supervise or enforce the requirement of the SOP – Forklift that the key must be removed whenever a forklift is unattended.

62. Some forklift drivers at the Site applied other controls that were not specified in the SOP – Forklift or otherwise documented by John Cook when parking a forklift and leaving it unattended, these controls being:

1. Applying the park brake.

2. Ensuring that the tynes were lowered when parking or leaving the forklift unattended.

3. Putting the forklift into neutral gear.

4. Parking the forklift on flat ground and avoiding parking on sloping ground.

63. The undocumented and informal parking system of some forklift operators referred to above was not adequately supervised or enforced by John Cook managers, supervisors and foremen, including Mr O’Sullivan.

John Cook Safety Systems Management

64. John Cook developed a document titled “Safety Systems Management” to comply with its obligations under the WHS Act. It was developed in 2005 and its last review date prior to the incident was June 2020.

65. The document provided:

“a. The duties of the management team included to ensure safe work procedures were developed and effectively implemented, that risk assessments of the workplace were being undertaken, ensure managers are effectively implementing OH&S documentation and to ensure appropriate supervision of workers.

b. The duties of managers included to make sure that safe work procedures were developed and effectively implemented, make sure that risk assessments of the workplace are being undertaken, to ensure supervisors and foreman are effectively implementing OH&S documentation and ensure appropriate supervision of workers.

c. The duties of supervisors/foreman included to ensure that workers carried out correct OH&S procedures and provide appropriate supervision, to implement John Cook’s safety system and correct unsafe work practice.”

66. The section titled “Risk Management Procedure” in the document dealing with the identification, assessment and control of hazards included a schedule titled “Warehouse/Yard Self-Inspection Checklist” and provided a five-point checklist for forklifts being:

“a. Were forklifts operated in a safe manner?

b. Is the load stable on the forklift?

c. Is the orange flashing light and reverse beeper operating?

d. Are the forklifts well maintained? (brakes, horn, tyres, mirrors, lights)

e. Do forklift operators remove the key when the forklift is unattended?”

67. The Safety Systems Management document did not adequately identify the risks for parked and unattended forklifts as the checklist did not include checking:

1. Whether the forklift had been parked on level ground with the load removed before leaving the forklift unattended.

2. If the forklift could not be parked on level ground, that the wheels of the forklift had been turned towards a safe stopping place like a wall or kerb and chocking the wheels of the parked mobile plant.

3. The park brake had been applied.

4. The fork arms or tynes had been fully lowered and tilted forward so that the tips touch the ground.

5. The drive controls had been left in neutral.

6. Not parking where other traffic, pedestrians, emergency exits, aisles, stairway access or safety equipment may be obstructed.

John Cook Safe Operating Procedure – Loading and Unloading Trucks

68. At the time of the incident John Cook had a SOP titled “Loading and unloading trucks” (SOP – Loading and Unloading Trucks). The document provided:

1. Loading and unloading of trucks must occur in the loading/unloading area.

2. The forklift driver must ensure that the truck driver is at the back of the truck in view of the forklift driver before loading or unloading commences.

3. If the truck driver is at the opposite side of the truck, up on the trailer of the truck or cannot be seen, the forklift driver must stop loading/unloading.

1. The forklift driver must ensure that other employees and visitors are out of the area before loading and unloading commences.

69. Mr O’Sullivan signed the SOP – Loading and Unloading Trucks on 3 December 2008.

Safety Induction and Other Training

70. On 23 May 2011 Mr O’Sullivan completed a John Cook safety induction. This included identification of specific work area hazards and their controls. Mr O’Sullivan completed a safety induction test that day.

71. On 16 December 2020 Mr O’Sullivan enrolled in the course “TLIF0009 – ‘Ensure the safety of transport activities (Chain of Responsibility)’”. The Unit of Competency was conducted over a period of 20 hours commencing on 1 January 2021 and ending on 31 December 2021.

Mr O’Sullivan’s Actions

72. Mr O’Sullivan left the forklift unattended with the engine running immediately before the incident. Mr O’Sullivan did not remove the keys from the ignition before leaving it unattended.

73. Mr O’Sullivan did not apply the park brake before leaving his forklift unattended.

74. Mr O’Sullivan failed to lower the tynes on the forklift before leaving it unattended.

75. Mr O’Sullivan parked the forklift on a slope and did not park the forklift horizontal to the slope of the driveway of the loading area.

76. When parking the forklift on a slope just before the incident, Mr O’Sullivan did not turn the steering of the forklift so that its wheels were on a 45-degree angle or chock the rear wheels of the forklift to prevent it rolling backwards.

77. Mr O’Sullivan did not take these steps throughout the day of the incident nor before the incident.

Guidance Material

Australian Standard AS2359.2 – Powered Industrial Trucks

78. At the time of the incident, Australian Standard AS 2359.2 dated 2013 was available to John Cook managers and supervisors, including Mr O’Sullivan. At Part 3.5 on p 19 it stated:

“When a truck is left unattended, the following requirements and precautions shall be observed by the operator:

(a) The truck shall be parked on level ground, wherever practicable, with the parking brake applied and, where it is unavoidably parked on an incline, the wheels shall also be chocked.

(b) A truck shall not be parked where other traffic or pedestrians, emergency exits, aisles, access to stairways or any other safety equipment (including fire equipment) may be obstructed …

(d) Fork arms and attachments shall be lowered so that they were as close as possible to, and if possible touching, the operating surface,

(e) The motive power shall be turned off and the key removed (where fitted). In cases where other means such as a key pad are used to prevent use of a truck by unauthorised personnel, these systems shall be turned to turn off the power.

(f) Manual transmissions of trucks shall be placed in low gear …”

Safe Work Australia – General Guide for Workplace Traffic Management

79. In or about July 2014 Safe Work Australia published a “General Guide for Workplace Traffic Management” which was available to John Cook managers and supervisors, including Mr O’Sullivan. It provided information on how to manage traffic risks at a workplace where there is a risk of traffic, including powered mobile plant such as forklifts, colliding with people in the workplace.

80. The guide recommended:

1. A traffic management plan may include details of illustrations of the layout of barriers, walkways, signs and general arrangements to warn and guide traffic around, past or through a work site.

2. The best way to protect pedestrians was to ensure that people and vehicles could not interact. Where powered mobile plant is used at a workplace, a person conducting a business or undertaking (PCBU) must ensure it does not collide with pedestrians or other powered mobile plant.

3. If it was not reasonably practicable to separate people and vehicles, a PCBU should consider using temporary physical barriers separating pedestrians from powered mobile plant.

4. How parking areas can be managed safely.

81. The guide provided guidance on addressing the risk of parked vehicles, including powered mobile plant rolling, by parking them on level ground, preferably in a designated parking area with the park brake firmly applied. Where this is not possible, consideration should be given to the installation of wheel humps in parking areas to prevent vehicles rolling away.

Safe Work Australia – General Guide for Industrial Lift Trucks

82. In July 2014 Safe Work Australia published a “General Guide for Industrial Lift Trucks”, providing information about managing health and safety risks arising out of industrial lift trucks, including forklifts. This was available to John Cook managers and supervisors, including Mr O’Sullivan. The general guide:

1. Recommended setting up the workplace so that industrial lift trucks, pedestrians and other vehicles were separated, and their paths do not cross.

2. Identified as a control measure the installation of barricades.

3. Recommended for parking and shutting down industrial lift trucks:

1. Parking on level ground with the load removed.

2. The park brake applied.

3. The fork arms or tynes be fully lowered and tilted slightly forward so the tips of the form arms touch the ground.

4. Leave the drive controls in neutral.

5. Remove the ignition key, or the start control locked off to stop an unauthorised person from using it when the vehicle is left unattended.

SafeWork NSW Safety Alert

83. On 5 December 2017 SafeWork NSW (SafeWork) published “Safety Alert – Uncontrolled Movement of Vehicles” which stated, amongst other matters:

“Contributing Factors

The uncontrolled movement of a vehicle can occur due to any singular or combination of reasons including: …

The operator not engaging the parking brake, or not engaging the parking brake sufficiently.

The vehicle being left in gear when exiting the vehicle.

Not parking on a level surface.

Inadequate inspection and maintenance of the braking system. …”

Operator Manual

84. The 1F Series Operator Manual, which applied to the forklift, stated at p 7:

“…Before leaving the forklift, be sure that the forks or attachments are lowered, forward-reverse lever is in neutral, parking brake is applied and ignition key is turned off. Avoid parking forklift on a slope.

Before leaving the forklift, be sure that forks or attachments are lowered, the selector lever is in neutral, the hand brake is applied and the ignition switch is turned off. Avoid parking the forklift on a slope…”

85. There is a warning label on the forklift that is referred to in the Operator Manual which states “[d]o not park on a slope.”

Evidence for the Defendant

Affidavit of Mr O’Sullivan

86. Mr O’Sullivan swore an affidavit on 16 April 2024 (DX 1).

87. Throughout Mr O’Sullivan’s affidavit he expressed significant remorse for his conduct and took responsibility for Mr Singh’s death. Mr O’Sullivan described thinking about the incident “every day” and “the pain and suffering that Mr Singh’s death has caused and continues to cause his family and loved ones”.

88. Mr O’Sullivan described personally knowing Mr Singh and wishes “every day” that he “could take back what happened” and that he is “so sorry”. In fixing a sentence, the court will take into account the shame and guilt experienced by Mr O’Sullivan, as an extra-curial punishment.

89. Mr O’Sullivan is 61 years old and has been married to Ms O’Sullivan for 36 years. Mr O’Sullivan has two adult children and three young grandchildren.

90. Mr O’Sullivan attained a School Certificate from Mt Druitt High School and entered the workforce. Mr O’Sullivan has been continuously employed since February 1980 and remains employed today by ITI (NSW) Pty Ltd.

91. Mr O’Sullivan obtained a forklift operator licence approximately 40 years ago. However, except for two days following his “immediate return to work” after the incident, Mr O’Sullivan has not operated a forklift since the incident.

92. In Mr O’Sullivan’s current role as a despatch clerk, he manages paperwork to despatch trucks and organise deliveries.

Events Before the Incident

93. Before the incident Mr O’Sullivan had worked for John Cook for approximately 14 years, including as an operations manager from 2012 to October 2020. In late August 2020 Mr O’Sullivan advised John Cook of his “decision to step down from this position”.

94. From 1 November 2020 Mr O’Sullivan worked as a forklift driver for John Cook.

95. In early 2020 Mr O’Sullivan’s father was diagnosed with bladder cancer and was receiving palliative care. Mr O’Sullivan’s father required recurrent hospital admissions and Mr O’Sullivan described observing his father’s “condition deteriorate which was traumatic and distressing until his death on 24 June 2021”.

96. In August 2020 Mr O’Sullivan’s father-in-law was diagnosed with advanced pancreatic cancer. Mr O’Sullivan had a close relationship with his father-in-law and lived within walking distance. Mr O’Sullivan’s father-in-law received home-based palliative care, organised by Ms O’Sullivan, whom Mr O’Sullivan described as having “difficulty coping” with her father’s condition.

97. Mr O’Sullivan’s father-in-law passed away on 10 March 2021 and Mr and Ms O’Sullivan “were extremely bereaved at the loss” of their parents.

98. Leading up to the incident Mr O’Sullivan stated that he “had a lot of things going on” in his mind, including pressure from management and losing family members. Mr O’Sullivan acknowledged in his affidavit that “this is not an excuse for what had happened” but that he wished “to provide an explanation” of the pressure he felt at the time, “particularly given that it involved the death of a valued colleague” who, like Mr O’Sullivan, “had a close and loving family”.

Events After the Incident

99. Mr O’Sullivan returned to work a fortnight after the incident. Mr O’Sullivan was required to return to his role as a forklift driver. However, after about two days Mr O’Sullivan spoke to management who then decided to change his duties to avoid using the forklift.

100. After the incident Mr O’Sullivan began experiencing “a great deal of psychological trauma including stress, anxiety, shame [and] panic attacks”. Mr O’Sullivan reported difficulty sleeping and accessed six Employee Assistance Program telephone counselling sessions which he commenced about a week after the incident.

101. Mr O’Sullivan subsequently consulted his general practitioner, who referred him to a psychologist. However, Mr O’Sullivan had difficulty contacting the psychologist and “decided to just cope” with his symptoms.

102. SafeWork cancelled Mr O’Sullivan’s forklift licence after the incident. Mr O’Sullivan was upset by this as he wanted to continue holding the licence he had held for “over 40 years”.

103. Mr O’Sullivan subsequently paid to take a course to obtain a new forklift licence as he was “worried that it was going to affect” his job. During the course Mr O’Sullivan went through the procedures of forklift operations and safety pre-checks. Mr O’Sullivan said that this course and the incident has made him “acutely aware” of the importance of lowering the forklift tynes, removing the keys, ensuring the park brake is on, and chocking the wheels of the forklift or manoeuvring them on an angle, particularly when parked on a slope.

104. Despite obtaining a new forklift licence, Mr O’Sullivan has never used it and is not required to use it in his current employment. Mr O’Sullivan is not sure that he “will ever be able to operate a forklift again”.

105. Mr O’Sullivan’s current job is administrative and does not require him to operate heavy machinery. Mr O’Sullivan expressed concern about his future employment prospects now that he has a criminal record. He believes he will “face difficulty in obtaining alternative employment”.

Criminal Proceedings

106. In June 2022 Mr O’Sullivan was charged with manslaughter under the Crimes Act 1900 (NSW) (Crimes Act) s 18(1)(b), carrying a maximum penalty of 25 years imprisonment.

107. Following negotiations between Mr O’Sullivan’s lawyers and the Office of the Director of Public Prosecutions, Mr O’Sullivan pleaded guilty on 9 August 2023 to the offence of dangerous driving occasioning death, pursuant to s 52A(1)(c) of the Crimes Act, which provides that a person is guilty of the offence of dangerous driving occasioning death if the vehicle driven by the person is involved in an impact occasioning the death of another person and the driver was, at the time of the impact, driving the vehicle in a manner dangerous to another person or persons.

108. The agreed facts Mr O’Sullivan pleaded guilty to for the offence of dangerous driving occasioning death are annexed to Mr O’Sullivan’s affidavit.

109. On 14 December 2023 Mr O’Sullivan was sentenced before Judge Beckett at Penrith District Court. The matter was part-heard and stood over to 23 February 2024 at Paramatta District Court to allow a home detention assessment to occur.

110. On 23 February 2024 Mr O’Sullivan was sentenced to a two-year Intensive Corrections Order (ICO), pursuant to s 7(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSP Act) which provides that a court that has sentenced an offender to imprisonment may make an ICO directing that the sentence or sentences be served by way of intensive correction in the community.

111. A Court Order Notice dated 3 April 2024 lists the conditions of the ICO and is annexed to Mr O’Sullivan’s affidavit. The ICO subjects Mr O’Sullivan to home detention for six months and requires him to submit a weekly timetable, including shopping and medical appointments, to Corrective Services for approval.

112. As part of Mr O’Sullivan’s ICO he has completed nearly 40 hours of Community Service Work and attends Penrith Community Corrections Office every Saturday between 7.00am to 2.30pm.

113. Mr O’Sullivan’s ICO prohibits him from driving for 12 months. Consequently, Mr O’Sullivan rides an electric bike to work and requires Ms O’Sullivan to drive him to community service every weekend.

114. Before Mr O’Sullivan’s sentencing, Professor Stephen Woods conducted a psychological assessment of Mr O’Sullivan on 24 November 2023 and prepared a report dated 1 December 2023 which is annexed to Mr O’Sullivan’s affidavit. This report is summarised below.

115. Before Mr O’Sullivan was sentenced, he wrote an apology letter to Mr Singh’s family and the Court. This letter is annexed to Mr O’Sullivan’s affidavit.

Background to SafeWork Commencing Proceedings

116. On 3 February 2021 Mr O’Sullivan received a notice under s 171 of the WHS Act. Mr O’Sullivan appeared before Inspector Trevor Buckett on 8 February 2021 for a recorded audio interview.

117. On 23 January 2023 SafeWork filed a Summons with an Application to Commence Proceedings for a Summary Offence in the District Court.

118. The SafeWork proceedings were delayed until Mr O’Sullivan’s criminal proceedings before Judge Beckett were finalised. Mr O’Sullivan pleaded guilty to the charge under the WHS Act on 5 February 2024.

Psychological Treatment

119. Since the incident Ms O’Sullivan “continually encouraged” Mr O’Sullivan to seek professional support “as she was concerned” about Mr O’Sullivan’s mental health. Mr O’Sullivan describes himself as “a reserved person” who does “not like to talk about things”.

120. Mr O’Sullivan saw his general practitioner and received a referral to a psychologist under a Mental Health Care Plan. Mr O’Sullivan scheduled the earliest available appointments with a psychologist in Penrith. His first appointment is on 6 June 2024.

121. Mr O’Sullivan anticipates having difficulty paying for his appointments but is “committed to getting appropriate treatment”.

Current Financial Circumstances

122. Mr O’Sullivan’s affidavit comprehensively set out his financial circumstances, including assets and liabilities, and includes copies of his home loan transactions and financial documents.

123. Mr O’Sullivan reports incurring legal costs of “more than $120,000.00” since the commencement of criminal proceedings but that John Cook has paid most of those costs.

124. Mr O’Sullivan anticipates additional legal costs arising from the SafeWork proceedings and is “concerned” about his “ability to pay any fine and legal costs”.

Assistance to SafeWork and NSW Police

125. Mr O’Sullivan participated in a Record of Interview with both NSW Police and with SafeWork. Mr O’Sullivan recalls the SafeWork interview lasting “over two hours”.

126. Mr O’Sullivan understands that the statements and interviews he gave may be used in the prosecutions of John Cook and other individuals and that he may be called as a witness. Mr O’Sullivan is “willing to give evidence if required” as he feels “it is the right thing to do”.

Character References

127. Mr O’Sullivan presented three character references to the court. Each character witness has worked with Mr O’Sullivan for many years.

Mr John Carbone

128. Mr Carbone described Mr O’Sullivan as “a friend as well as a work colleague”.

129. Mr O’Sullivan mentored Mr Carbone, who described Mr O’Sullivan as “a kind spirit, extremely thoughtful for others, reliable and above all a good friend”.

130. Mr Carbone was “in shock” when he heard about the incident because he knew Mr O’Sullivan “as a responsible, cautious person”. Mr Carbone regards the incident as “totally out of character” for Mr O’Sullivan.

131. Mr Carbone wrote that he has seen the effect of the incident on Mr O’Sullivan and that he gives his “full support” to Mr O’Sullivan, knowing Mr O’Sullivan “to be a good person of sound character, integrity and an unquestionable moral compass”.

Mr Michael Hill

132. Mr Hill describes Mr O’Sullivan as having “a tremendous work ethic” and being “a reliable, hardworking and trusted member” of his team, “willing to help wherever he can”.

133. Mr Hill said that Mr O’Sullivan “has a kind and gentle nature and is a well-disciplined and responsible man who is considerate of and courteous to others”. Mr Hill is proud to call Mr O’Sullivan a friend.

134. Mr Hill was shocked to hear about the incident and “even more surprised” to hear that Mr O’Sullivan was involved.

135. Mr Hill reported that the incident caused Mr O’Sullivan to become withdrawn and suffer “long periods of depression”, but that despite Mr O’Sullivan’s “emotional turmoil and financial struggles”, he continues to “show up for work and make a meaningful contribution”.

136. Mr Hill believes that Mr O’Sullivan “is truly devastated by the accident and is genuinely remorseful”. Mr Hill describes Mr O’Sullivan’s heart as “filled with sadness for the bereaved family”, saying that Mr O’Sullivan “will carry this burden with a heavy heart for the rest of his life”.

137. Mr Hill considers that the way Mr O’Sullivan “has carried himself since the accident is commendable” and is “impressed by his strength of character”.

Mr Brenton Christopher

138. Mr Christopher describes Mr O’Sullivan as “a very diligent, honest, trustworthy, absolutely committed employee” who “would go out of his way to assist when required”.

139. Mr Christopher regards Mr O’Sullivan as a well-liked and trusted person, evidenced by Mr O’Sullivan being entrusted with having access to the Site as a “key holder”.

140. Mr Christopher said that Mr O’Sullivan “took training seriously” and that Mr O’Sullivan would not have been a key holder if Mr Christopher did not have confidence in him.

Professor Stephen Woods Clinical Forensic Psychological Assessment

141. Mr O’Sullivan undertook a clinical forensic psychological assessment with Professor Woods on 24 November 2023 in preparation for the sentence hearing before Judge Beckett in Penrith District Court.

142. Professor Woods opined that “with the notable exception” of this incident, an assessment of Mr O’Sullivan “failed to detect any history of behaviours suggestive of a disregard for the rights and wellbeing of others”.

143. Professor Woods recorded the “trauma-related stressors” Mr O’Sullivan was experiencing in the months preceding and at the time of the incident, most notably the poor health of his father and father-in-law.

144. Professor Wood noted Mr O’Sullivan’s “otherwise unblemished work safety record”, finding that it was “probable” that Mr O’Sullivan’s concentration was impaired on the day of the incident because he was experiencing “enmeshed grief” about his father and father-in-law, a “high-level concern for his wife’s mental wellbeing”, and work duty stressors, on top of commencing work at 4.00am that morning.

141. Professor Woods reported that the incident “has and continues to cause Mr O’Sullivan to experience a very great deal of psychological trauma”. Professor Woods opined that Mr O’Sullivan’s symptoms indicate:

1. Post-traumatic Stress Disorder with Survivor Guilt, Post-traumatic Shame, and Panic Attacks.

2. Other Specified Trauma- and Stressor-Related Disorder.

3. Major Depressive Disorder, recurrent episodes, with anxious distress.

146. Professor Woods concluded that:

“Mr O’Sullivan’s post-accident mental health has suffered such that he requires intensive psychological treatment focussing on:

Trauma and depressive symptoms.

Survivor guilt and shame.”

Consideration

147. I have had regard to the objects in s 3 of the WHS Act and the purposes of sentencing set out in s 3A of the CSP Act.

Objective Seriousness of the Offence

148. The proportionality principle requires that a sentence should neither exceed nor be less than the gravity of the crime having regard to the objective circumstances: Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465 at 472, 485-6, 490-1 and 496. At common law, the term “objective circumstances” was used to describe the circumstances of the crime. The gravity of the offence was assessed by reference to its objective seriousness: R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 at [15].

149. The task requires the court to consider where in the range of conduct covered by the offence the conduct of the offender falls: Baumer v R [1988] HCA 67; (1988) 166 CLR 51 at 57. This assessment will generally indicate the appropriate range of sentences available which will reflect the objective seriousness of the offence committed, and set the limits within which a sentence proportional to the criminality of the offender will lie: BW v R [2011] NSWCCA 176 at [70].

150. In Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [27] the High Court said:

“The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending.”

151. The sentencing judge should take into account not only the conduct which actually constitutes the crime, but also such of the surrounding circumstances as are directly related to that crime and are properly regarded as circumstances of aggravation or mitigation: R v Wilkinson(No. 5) [2009] NSWSC 432 at [61].

152. The existence of a reasonably foreseeable risk to safety that is likely to result in serious injury or death is a factor relative to the gravity of the offence: Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 at [82]. The question of foreseeability of the risk is to be determined objectively.

153. The court must identify all the factors that are relevant to the sentence, discuss their significance and then make a value judgment as to what is the appropriate sentence given all the factors of the case: Muldrock. This approach to sentencing, known as the “instinctive synthesis” approach, involves the making of a global judgment without any attempt to state precisely how any given factor has influenced the judgment.

154. The Court of Criminal Appeal has examined the sentencing process with regard to the WHS Act in the matter of Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96. Justice Basten at [34], under the heading “Assessment of Risk” said:

“The sentencing judge commenced his consideration with the proposition that ‘greater culpability attaches to the failure to guard against an event the occurrence of which is probable rather than an event the occurrence of which is extremely unlikely’. However the truth of that proposition depends upon other considerations including (a) the potential consequences of the risk, which may be mild or catastrophic, (b) the availability of steps to lessen, minimise or remove the risk, and (c) whether such steps are complex and burdensome or only mildly inconvenient. Relative culpability depends on assessment of all those factors.”

155. Further at [42] his Honour continued:

“The culpability of the Respondent is not necessarily to be determined by the remoteness of the risk occurring, nor by a step‑by‑step assessment of the various elements. Culpability will turn upon an overall evaluation of various factors, which may pull in different directions. Culpability in this case is reasonably high because, even if the [event] which occurred might not be expected to occur often, the seriousness of the foreseeable resultant harm is extreme and the steps to be taken to avoid it, which were not even assessed, were straightforward and involved only minor inconvenience and little, if any, costs.”

156. At [53] his Honour dealt with the proper approach to considering the objective seriousness of offences under the WHS Act, saying:

“It is important to note that the risk to be assessed is not the risk of the consequence, to the extent that a worker is in fact injured, but is the risk arising from the failure to take reasonably practicable steps to avoid the injury occurring. To discount the seriousness of the risk by reference to the unlikelihood of injury resulting is apt to lead to error. The conduct in question is the failure to respond to a risk of injury, conduct which will be more serious, the more serious the potential injuries, whether or not they are likely to materialize. The objective seriousness of the conduct will also be affected by the ease with which mitigating steps could have been taken.”

157. My findings about the defendant’s level of culpability are based upon the following:

1. The risk was known to Mr O’Sullivan as an experienced forklift driver. Further, the risk was obvious and foreseeable. There was ample guidance material which identified the risk.

2. There was a significant likelihood of the risk occurring.

3. The potential consequences of the risk were death or serious injury.

4. There were simple and obvious steps available to eliminate or minimise the risk.

5. There was no practical burden or inconvenience of those steps being implemented.

6. The death of Mr Singh was caused by the breach of duty.

7. The maximum penalty for the offence is a fine of $176,460 which reflects the legislature’s view of the seriousness of the offence.

8. It was an agreed fact that on other occasions Mr O’Sullivan and other workers left their forklifts without taking proper precautions to prevent them rolling away.

158. I find that the level of culpability of Mr O’Sullivan is in the mid range.

Deterrence

159. The penalty imposed in relation to this offence must provide for general deterrence. Employers must take the obligations imposed by the WHS 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 Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338 at [180].

160. The penalty must reflect the need for specific deterrence. Mr O’Sullivan is still working in industry. He is no longer driving a forklift, but he is licensed to do so.

Aggravating Factors

161. The injury, emotional harm, loss or damage caused by the offence was substantial: s 21A(2)(g) CSP Act.

Mitigating Factors

162. Mr O’Sullivan is 61 years old and has no previous convictions: s 21A(3)(e) CSP.

163. Mr O’Sullivan is otherwise of good character: s 21A(3)(f) CSP Act.

164. Mr O’Sullivan is unlikely to re-offend: s 21A(3)(g) CSP Act.

165. Mr O’Sullivan has good prospects of rehabilitation: s 21A(3)(h) CSP Act.

166. Mr O’Sullivan has shown remorse for the offence: s 21A(3)(i) CSP. He has provided evidence that he has accepted responsibility for his actions and has acknowledged that the fatal injury to Mr Singh was caused by his actions.

167. Mr O’Sullivan entered a plea of guilty: s 21A(3)(k) CSP Act. The court must take into account the fact that the offender has pleaded guilty, when the offender pleaded guilty, and the circumstances in which the offender indicated an intention to plead guilty: s 22(1) CSP Act. It is appropriate to give Mr O’Sullivan a 25% discount for an early plea.

168. Mr O’Sullivan gave assistance to law enforcement authorities: s 21A(3)(m) CSP Act. He cooperated at all times with the prosecutor and provided all documents requested in a prompt fashion.

Capacity to Pay a Fine

169. I am required to have regard to s 6 of the Fines Act 1996 (NSW) 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: Mahdi Jahandideh v The Queen [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.

170. In Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 at [79] the Court of Criminal Appeal said:

“First, and more generally, questions of specific deterrence should take into account the size and scope of the operations of the defendant; a fine which may be crippling to a small business may have virtually no impact on the financial operations of a large corporation. The maximum penalty for the offence is undoubtedly set having regard to such a factor. Secondly, the Court is required to have regard to ‘the means’ of the defendant, pursuant to s 6 of the Fines Act 1996.”

171. I will take into account that Mr O’Sullivan lives in a modest home and that he does not have a high income. He has incurred and will incur significant legal expenses as a result of the two charges against him. I will moderate the fine which would otherwise be imposed.

Victim Impact Statements

172. The defendant was convicted at the sentence hearing on 17 April 2024.

173. Part 3 Division 2 of the CSP Act deals with Victim Impact Statements. The provisions apply to an offence being dealt with summarily by the District Court where the offence results in the death of, or actual physical bodily harm to, any person – s 27(2)(a).

174. A Victim Impact Statement may be tendered to the court only by the prosecutor – s 30A(2). A court must accept a Victim Impact Statement tendered by a prosecutor if the statement complies with the requirements of the Division – s 30B. A victim to whom a Victim Impact Statement relates may read out the whole or part of their Victim Impact Statement – s 30D(1).

175. A court to which a Victim Impact Statement has been tendered must consider the statement at any time after it convicts but before it sentences, and may make any comment on the statement that the court considers appropriate – s 30E(1).

176. By s 28(2) a family victim in relation to an offence may prepare a Victim Impact Statement that contains particulars of the impact of the primary victim’s death on the family victim or other members of the primary victim’s immediate family. Members of a primary victim’s immediate family include children and grandchildren of the deceased – s 26.

177. A Victim Impact Statement of a family victim may also be taken into account by the court in connection with the determination of punishment for the offence, on the basis that the harmful impact of a primary victim’s death on family victims is an aspect of harm done to the community – s 30E(3). Such statements can only be taken into account on punishment if the prosecutor applies for this to occur, and the court considers it to be appropriate. In the present instance the prosecutor applied for this to occur and I determine that it is appropriate to take the statement into account.

178. The prosecutor tendered a Victim Impact Statement by Ms Jagdish Kaur, Mr Singh’s wife (PX 2). Ms Kaur observed the sentence hearing by AVL and did not wish to read her statement aloud to the court.

179. Ms Kaur described the “unbearable weight of grief” that surrounds the loss of Mr Singh, and “an emptiness that threatens to consume” Ms Kaur and her three daughters.

180. Ms Kaur expressed that Mr Singh “was the very foundation” upon which their family was built. Ms Kaur described Mr Singh’s love as “a guiding light” and “his presence a source of strength and comfort”. Mr Singh’s absence has “thrown” Ms Kaur and her daughters’ world “into darkness”, and the warmth of Mr Singh’s “embrace replaced by a cold and unforgiving emptiness”.

181. Ms Kaur detailed how Mr Singh’s death has affected their daughters, with her eldest daughter “now weighed down by the responsibilities upon her young shoulders, threatening to crush her beneath its weight”. Ms Kaur described her daughter having to “navigate a world of grown-up responsibilities” as she was “forced to assume the role of head of the household in the absence of her father”. She now manages the household finances and schedules appointments, “leaving her with little time to be sad over the loss of her own childhood”.

182. Ms Kaur described how her second daughter, “once the beacon of strength and boundless energy now moves through life with a heavy heart knowing her father will no longer be with her”. Each sporting success is now “coloured with sorrow, each defeat a painful reminder of the grief left by her father’s absence”. Ms Kaur said that her daughter “can never outrun the shadow of grief that looms over her like a storm cloud”.

183. Ms Kaur expressed how her third daughter “clings to the memories of her father” and prays each night “into the darkness hoping against hope that he will hear her and return”, but that “the silence that greets her is definitely a cruel reminder of the emptiness that now fills” their lives.

184. Ms Kaur feels “lost in a maze of grief and despair”, with the dreams for the future she once shared with Mr Singh “shattered” and feeling “like a cruel joke, a bitter reminder” of all they have lost.

185. Ms Kaur described each day as a “battle, a struggle to find meaning in a world that no longer makes sense” without Mr Singh by their side.

186. Ms Kaur wrote that in “every corner” of their home they are “reminded of the void” left by Mr Singh’s absence. Ms Kaur expressed that Mr Singh’s “laughter, and his love linger in the air like a ghost, a constant presence in [their] lives even as he slips further and further from [their] grasp”.

187. The lives of Ms Kaur and the three girls have been forever altered by Mr Singh’s passing. Ms Kaur said that they “are left with a profound sense of heartache and longing” for the life they once knew as they “struggle to come to terms” with their loss.

188. Ms Kaur believes that “the pain” of Mr Singh’s “absence is a wound that will never heal, a constant reminder of the void left by his passing, a void that can never be filled”.

189. I take into account the unbearable pain and loss of Ms Kaur and her three daughters, as an aspect of harm done to the community: s 30E(3) CSP Act. This case is a further demonstration that unless safety in the workplace is ensured, not only by employers, but by workers themselves, terrible consequences can occur because of a failure to follow even the simplest and clearest of safety rules. The court offers its own sympathies to the family of the late Mr Singh.

Costs

190. There will be an order that the defendant is to pay the prosecutor’s costs.

Totality

191. The charges under the WHS Act and the charge of driving in a manner dangerous causing death arise out the same event. I must therefore have regard to the principle of totality when imposing sentence. When a court sentences an offender for more than one offence, the aggregate or overall sentence must be “just and appropriate” to the totality of the offending behaviour: Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 at 63. The principle of totality is applicable where the penalty imposed is by way of fine: Camilleri’s Stock Feeds Pty Ltd v EPA (1993) 32 NSWLR 683 at 704.

192. In Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 the High Court expressed a preference for what should be regarded as the orthodox, but not necessarily immutable, practice of fixing a sentence for each offence and aggregating them before taking the next step of determining concurrency. In Pearce v The Queen (1998) 194 CLR 610 the High Court said at [45]:

“A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality.”

193. In Hesketh v R [2021] NSWCCA; (2021) 106 NSWLR 200 the Court of Criminal Appeal said at [51] that where there is overlap or a common factual substratum between two offences, it is appropriate to adopt a “relatively small degree of notional accumulation in the two indicative sentences” which will represent “the sentencing judge giving effect to the totality principle and thereby addressing the vice of double punishment”.

194. The agreed facts placed before Judge Beckett were in evidence before this court (DX 1, Tab 1, Annexure KMO-1). The allegations as to the steps which Mr O’Sullivan failed to take to stop the forklift rolling away were congruent with the allegations in the Summons before this court. In both prosecutions the agreed facts stated that Mr O’Sullivan: did not park the forklift on level ground; left the steer wheels of the forklift at a 45-degree angle; did not apply the parking brake; and did not lower the tynes of the forklift. As a result of these failures Mr O’Sullivan was guilty of the offence dealt with by Judge Beckett and the offence charged under the WHS Act.

195. This court recognises that there has been a condign punishment imposed on Mr O’Sullivan by the ICO, which has significantly restricted his liberty. The penalty imposed for the dangerous driving charge is of a higher order (ie imprisonment to be served by way of an ICO) than can be imposed in these proceedings. This court can only deal with a breach of duty under the WHS Act by a fine. According to the research of counsel, and my own research, there does not appear to be a case in this state where a defendant has been dealt with under the Crimes Act and also under the WHS Act for what is essentially one event.

196. In those circumstances the court must apply the principle of totality in order to avoid double punishment.

197. But for the fact that Mr O’Sullivan has been sentenced on the dangerous driving charge, the appropriate fine would be much higher than will be imposed. Unlike cases such as Hesketh, where there were two gaol sentences, there is no appropriate expression of “notional accumulation” in this case, as the dangerous driving charge carries a penalty of imprisonment, whereas the charge under the WHS Act can only be dealt with by a fine. In fixing the fine, I will take into account all of the matters discussed above, as well as the fact that Mr O’Sullivan must pay the prosecutor’s costs.

Penalty

198. My orders are:

1. Karl O’Sullivan was convicted on 17 April 2024.

2. The appropriate fine is $10,000 but that will be reduced by 25% to reflect the early plea of guilty.

3. Order Karl O’Sullivan to pay a fine of $7,500.

4. Order pursuant to Section 122(2) of the Fines Act 1996 (NSW) that 50% of the fine is to be paid to the prosecutor.

5. Order Karl O’Sullivan to pay the prosecutor’s costs.

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Decision last updated: 01 May 2024