SafeWork NSW v Kellogg (Aust.) Pty Ltd

[2025] NSWIC 12

Industrial Court

New South Wales

Medium Neutral Citation:

SafeWork NSW v Kellogg (Aust.) Pty Ltd [2025] NSWIC 12

Hearing dates:

4 September 2025

Date of orders:

19 September 2025

Decision date:

19 September 2025

Before:

Paingakulam J

Decision:

(1) I impose a fine of $510,000.

(2) Kellogg is to pay the prosecutor’s costs of the proceedings as agreed or assessed.

(3) Pursuant to s 122(2) Fines Act 1996 (NSW), 50% of the fine is to be paid to the prosecutor.

Catchwords:

CRIMINAL LAW — work health and safety — offences — category 2 — workers fell off elevated work platform after it was struck by a truck — workers not supervised — workers not adequately trained or inducted — safety procedures not followed — failures were reflective of a failure to implement existing adequate safety systems — large company — good corporate citizen

SENTENCING — relevant factors on sentence — objective seriousness — aggravating factors — mitigating factors — deterrence — appropriate penalty — reduced moral culpability due to failures of other entities — record of previous convictions — cannot find that offender is unlikely to reoffend

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW)

Fines Act 1996 (NSW)

Occupational Health and Safety Act 1983 (NSW)

Work Health and Safety Act 2011 (NSW)

Cases Cited:

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

BW v The Queen [2011] NSWCCA 176

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

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25

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

Nash v Silver City Drilling (NSW) Pty Ltd; Attorney General for New South Wales v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96

R v Borkowski [2009] NSWCCA 102

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

R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309

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

R v Youkhana [2004] NSWCCA 412

Saunders v The Queen [2022] NSWCCA 174

Unity Pty Ltd v SafeWork NSW [2018] NSWCCA 266

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

WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Aust) Pty Ltd (No 2) (2000) 101 IR 261; [2000] NSWIRComm 53

WorkCover Authority (NSW) (Inspector Howard) v Baulderstone Hornibrook Pty Ltd (2009) 186 IR 125; [2009] NSWIRComm 92

Category:

Sentence

Parties:

SafeWork NSW (Prosecutor)
Kellogg (Aust.) Pty Ltd (Offender)

Representation:

Counsel:
A Mykkeltvedt (Prosecutor)
B Rauf (Offender)

Solicitors:
SafeWork NSW (Prosecutor)
Ashurst (Offender)

File Number(s):

2025/80102

Publication restriction:

Nil

JUDGMENT

1. Kellogg (Aust.) Pty Ltd (Kellogg) manufactures and distributes ready-to-eat cereals and snacks from a manufacturing plant in Banksmeadow, New South Wales (the site). Kellogg engaged Chess Engineering Pty Ltd (Chess) to conduct works involving the replacement and installation of new air curtains above the roller doors of a number of the loading docks at the site. On 3 March 2023, Mr Bassam Ghosn and Mr Hojin Lee, on the instructions of Chess, were repairing a damaged bracket above the roller door to loading dock 7 when Mr Chanpreet Singh reversed his truck into loading dock 7, colliding with the Elevated Work Platform (EWP) on which Mr Ghosn and Mr Lee were working. Mr Ghosn and Mr Lee were thrown out of the EWP and fell approximately four metres to the ground of loading dock 6. Each suffered significant fractures, requiring surgery.

2. Kellogg appeared for sentence after pleading guilty to an offence that as a person who had a work health and safety duty pursuant to s 19(1) of the Work Health and Safety Act 2011 (NSW) (WHS Act) it failed to comply with that duty and thereby exposed Mr Ghosn and Mr Lee to a risk of death or serious injury contrary to s 32 of the WHS Act.

3. The risk particularised at paragraph 16 of Annexure A to the Summons is as follows:

“The risk was the risk of workers, in particular Mr Ghosn and Mr Lee, suffering serious injury or death as a result of direct or indirect contact with a vehicle entering the loading dock when they were undertaking the task (risk).”

4. The maximum penalty for this offence is a fine of 17,315 penalty units ($1,860,843).

Facts

5. The prosecutor tendered an Agreed Statement of Facts. I have taken this document into account in coming to an appropriate sentence. What follows is a brief summary of the facts relevant to the offence to permit an understanding of the sentence imposed.

Background

6. Chess is an engineering company that undertakes structural steel fabrication, equipment installation and installation maintenance. Kellogg engaged Chess to install air curtains, a fan system installed at an entrance to a building designed to prevent the entry of contaminants, above the roller doors of loading docks 4 to 8 at the site. At the time of the incident, Chess had undertaken various engineering works for Kellogg at the site for 40 years without any serious safety incidents.

7. Chess employed Mr Adam Hollis as the site supervisor. At the time of the incident, Mr Hollis had been a site supervisor for six years and supervised approximately 15 workers, including contractors. He reported to Mr Mark Ornig, a construction supervisor and project manager and Mr Bruce Macklin, a mechanical and project engineer. Both Mr Ornig and Mr Macklin were employed by Ignite Limited (Ignite) and assigned full time to the Kellogg site. Also employed by Ignite as the project manager and electrical engineer responsible for the curtain project was Mr Bob Crispin. Kellogg employed an engineering manager, Mr Sachin Patil, whose duties included the supervision of Mr Macklin and Mr Crispin.

8. Mr Singh was a casual truck driver employed by TASTRANS Pty Ltd. Mr Singh had been driving trucks for approximately six years at the time of the incident.

Injured workers

9. Mr Ghosn was a casual metal welder and fabricator employed by WMA Labour Hire Pty Ltd (WMA). Chess engaged WMA to provide the labour services of Mr Ghosn as part of a labour hire agreement. Mr Ghosn had 25 years’ experience in welding at the time of the incident. When working at the site, Mr Ghosn reported to Mr Hollis.

10. Mr Lee was a contractor engaged by Dana Engineering Pty Ltd (Dana). Chess subcontracted maintenance and installation work at the site to Dana. Mr Lee had been working for Dana for 18 months and had approximately nine years’ experience in welding at the time of the incident. He also reported to Mr Hollis when working at the site.

Air curtain project

11. The works commenced on 28 February 2023 under the supervision of Mr Hollis. Loading docks 4 to 8 remained operational during the works. The loading docks had lights to indicate if they were safe to use. However, the safety indicator lights had not been working for some time. Buttons to activate the roller doors to the loading dock were accessible from the outside of the building. Contrary to Kellogg’s Safe Work Instruction, truck drivers had, on occasion, used the buttons to open the roller doors.

12. On 1 and 2 March 2023, the engineering team erected barricades using engineering or danger tape and plastic cones outside the loading dock where works were to occur. On 2 March 2023, Mr Ornig inspected the worksite setup at the loading dock before Mr Ghosn and Mr Lee began work for the day. During the course of the day, Mr Ghosn noticed a damaged steel bracket above roller door 7 which needed to be replaced prior to the installation of the new air curtain.

The morning of the incident

13. On 3 March 2023 at around 6:30am, Mr Ornig, Mr Hollis, Mr Ghosn and Mr Lee attended a 15-minute prestart discussion at the site. Mr Hollis instructed Mr Ghosn and Mr Lee to set up an EWP to replace the damaged bracket. The loading dock area in which the air curtains were to be installed were on a slight gradient. Mr Hollis had previously requested the use of an EWP that could automatically level itself, however, this specific EWP was not available to be used on the day of the incident.

14. At approximately 7:00am, Mr Hollis left the site to attend another job. On leaving the site Mr Hollis observed that, contrary to the practice on previous days as outlined in [12] above, there were no barriers or warning markers in place and the roller doors to loading docks 6 and 7 were closed. Mr Hollis did not provide any instructions to Mr Ghosn or Mr Lee in relation to the absence of barriers or other markers.

The incident

15. At approximately 7:00am on 3 March 2023, Mr Ghosn and Mr Lee began works to repair the bracing on loading dock 7. The EWP was positioned on the raised platform of loading dock 6 and was protruding into loading dock 7. Mr Lee faced the roller door and commenced welding the bracket. Mr Ghosn, who was operating the EWP, faced the opposition direction, with his back to the welding to prevent flash burns. Mr Ghosn and Mr Lee were elevated approximately four metres above the ground. During this time, the roller door to loading dock 7 was closed but not isolated.

16. At approximately 7:30am, Mr Singh arrived at the site driving a semi-trailer truck. Mr Singh completed a Driver Declaration Form and gave it to the security guards on duty. The security guards, who were employed by MSS Security Pty Ltd (MSS Security), spoke with a forklift operator who confirmed that the loading docks were empty and then advised Mr Singh of the same.

17. Mr Singh then proceeded to drive his truck from the security gatehouse to the loading dock area where he parked and waited for several minutes. Mr Singh observed that the loading dock roller door was closed and that there were no signs or barricades in place. Mr Singh exited his truck, walked over to the control panel positioned on the exterior of loading dock 7 and pressed the controls to open the roller door to loading dock 7. Mr Singh then returned to his truck and reversed it into loading dock 7, colliding with the EWP and causing it to fall to the ground. Mr Ghosn and Mr Lee were thrown out of the EWP and fell approximately four metres to the ground of loading dock 6.

Injuries

18. Workers attended to Mr Ghosn and Mr Lee until paramedics arrived at the site. Mr Ghosn and Mr Lee were later taken to St Vincent’s Hospital Sydney by ambulance.

19. Mr Ghosn was hospitalised for three weeks after suffering pelvic and vertebral fractures. He underwent an open reduction and internal fixation surgery on his pelvic fractures involving the insertion of rods and plates. He later spent approximately nine weeks as an inpatient at Royal Rehab Private.

20. Mr Lee suffered a fractured left hand. He was hospitalised for two days before returning to South Korea to undergo surgery that involved the insertion of pins in his left hand. Mr Lee was unable to work for approximately four months after the incident. He then returned to work at the site.

Legal obligations and guidance material

21. Prior to the incident, the following industry guidance material was published and available to Kellogg:

1. The Safe Work Australia (SWA) “Guide to Managing the Risks of Elevated Work Platforms” (EWP Guide) dated September 2021 identifies that persons conducting a business or undertaking (PCBUs) have the primary duty of care for the health and safety of workers at the workplace. It also states that workers must be consulted on the health and safety issues concerning the use of EWPs. The EWP Guide identifies known hazards as including contact or collision with other people or plant and the risks associated with working from heights. It also states that isolation controls should be implemented to restrict site access to people who are directly involved in the work and that sufficient supervision should be maintained. It proposes the use of physical barriers, exclusion zones, sensing devices, spotters and pre-use safety checks as safety mechanisms.

2. The SWA “Traffic Management Guide for Warehousing” dated July 2014 states that contractors and visiting delivery drivers should be aware of site traffic safety rules and procedures.

3. The SWA “Labour Hire: Duties of PCBUs Guide” dated 3 February 2020 requires all duty holders in a labour hire arrangement to consult, cooperate and coordinate with each other so far as is reasonably practicable. It also requires PCBUs to ensure workers have sufficient training, information and supervision arrangements and imposes obligations on both host and labour hire PCBUs to minimise risks to workers’ safety.

4. The SWA “Traffic Management: Guide for Warehousing” dated July 2013 similarly states that a PCBU should implement a sufficient traffic management plan that explains how risks will be managed at a warehouse. This should include details of who is responsible for managing traffic flow, instructions for controlling traffic and the implementation of barriers and signs to warn pedestrians.

Systems of work prior to the incident

22. At the time of the incident, there were numerous safety systems in place at the Kellogg site.

Risk register and risk assessments

23. A site risk register titled “EHS Management System Procedure Risk Register – Botany” dated 15 November 2017 (Risk Register) identified relevant hazards including working from heights, the presence of visitors on site, heavy vehicle movements, capital work projects and mobile plant use including EWPs. It identified relevant hazard controls including pre-work safety, work planning and consultation with all impacted parties, none of which were implemented on the day of the incident. It also proposed a series of hazard controls for working from heights, which included training, the use of Job Risk Assessment and Work Method Statements (JRAWMS), work permits and exclusion zones, with the last of these measures only being applicable to packing lines.

24. The Risk Register identified proposed controls for the presence of contractors and visitors including mandatory JRAWMS, work permits and consultation with the engineering team at pre-start meetings. It also required visitors to be accompanied by a Kellogg staff member. It identified and addressed the risks of heavy vehicle movements on site by implementing “traffic management strategies under the direction of security”. Notwithstanding these measures, site security confirmed to Mr Singh that he could proceed unaccompanied to the loading docks, which they stated were empty. He was not informed that work was being performed. From there he was able to enter the loading dock by activating the roller door from the outside.

25. Mr Crispin was unaware that the Risk Register existed. However, he completed a WHSE Risk Assessment Form for the air curtain upgrade which identified the hazard of forklift movements near the loading docks and had proposed the use of barricades and signage. It also required the completion of a JRAWMS prior to work commencing.

26. On 27 February 2023, Mr Hollis, on behalf of Chess, completed a JRAWMS on Kellogg’s letterhead for the installation of the air curtains and bracing. Under the JRAWMS, Mr Ornig and Mr Hollis were responsible for inspecting the work area prior to each day of work. This did not occur on the morning of the incident. Further, the JRAWMS required the loading dock area to be closed and barricaded and roller doors isolated between 1 and 3 March 2023. Again, these measures were not implemented on the day of the incident.

27. Chess did not adequately communicate the JRAWMS to its workers at the site. Mr Ghosn and Mr Lee’s signatures appear on the JRAWMS and are dated 28 February 2023. However, both men have stated that the signatures, which purport to be theirs, are not. Mr Ghosn has also stated that he had never seen the JRAWMS document prior to SafeWork NSW’s investigation. Kellogg is not aware of how Mr Ghosn and Mr Lee’s apparent signatures were found on the JRAWMS. The JRAWMS was also annotated at some point between 27 February 2023 and 3 March 2023 to identify the isolation of the roller safety door as an additional safety mechanism.

28. The Risk Register required visitors to the site to be accompanied by a Kellogg staff member. Again, this did not occur on the day of the incident, as Mr Singh accessed the site unsupervised upon completion of his Driver Declaration Form. Furthermore, nobody from Kellogg, Chess or Ignite informed Mr Singh that work was being performed in the loading dock.

Work permits and procedures

29. The Risk Register and JRAWMS required the use of work permits prior to the commencement of works, and Kellogg had a “Permit to Work Program” procedure. However, once again Mr Ghosn and Mr Lee have both stated that the signatures on the work permits are not theirs and Mr Ghosn has denied that any work permits were issued on the morning of the incident. It was Mr Hollis’ responsibility to obtain the signatures of his workers on the permits once they were issued to him by Mr Ornig. Accordingly, Kellogg is unable to account for how that could have occurred. In any event, the work permits did not stipulate the requirement for the roller door to be isolated, contrary to the terms of the JRAWMS.

30. Kellogg also had a “Working from Heights and Fall Protection” procedure dated 17 November 2020. This procedure identified work in EWPs and requirements for barriers to prevent collision with vehicles and contractor safety. It also stated that signs should be erected warning of the dangers of the work area. On 1 and 2 March 2023, the engineering team displayed signage and barricades to indicate the works being undertaken. However, on the day of the incident, this did not occur. This procedure also contained an elevated work risk assessment Safe Work Method Statement (SWMS) template for working in an EWP. However, this template was not used in relation to the works.

Safe work procedures

31. Kellogg maintained numerous safe work procedures, including a “Safe Work Instruction: Unloading Trucks” policy dated 9 March 2015. This policy stipulated that only trained and assigned persons were to operate the loading dock roller doors. It also required trucks to be ushered into a loading dock in the presence of a forklift operator. However, it was not provided to Mr Singh and its requirements were not otherwise met on the day of the incident.

32. Further, Kellogg had a “Kellogg Good Manufacturing Practices Policy for Botany Plant” dated 20 October 2020, which identified rules for packing material delivery drivers. However, it did not specify that drivers were not permitted to operate the exterior control panel to open the roller doors.

33. In terms of traffic management, Kellogg had an “EHS Management System Procedure – Moving Equipment & Pedestrian Segregation” dated 13 October 2020, which managed risks associated with segregating moving equipment and pedestrians generally on site. At the time of the incident, Kellogg did not have a traffic management plan to facilitate communication between security, forklift operators, delivery drivers and maintenance workers. Additionally, although Chess had allocated a spotter to the site between 28 February 2023 and 2 March 2023, he was not at work on the day of the incident and Chess did not allocate an alternative spotter in his place.

Training and inductions

34. Kellogg had a “Driver Declaration Form” dated 17 March 2021, which was signed by Mr Singh on the day of the incident. However, this document failed to provide information regarding who was permitted to activate the control panel on the exterior of the loading dock. Nor was that information contained in the site safety rules, documented in the “Kellogg EHS Management System Procedure Contract Induction Revision 3.0”. Aside from the Driver Declaration Form, Mr Singh was not provided with any site instructions.

35. Mr Ghosn stated that when he commenced work at the site, he received a 5–10-minute induction from Mr Hollis. He did not receive any other training from Chess, Kellogg or WMA. Mr Lee stated that he received several site inductions, but none related to working safely around traffic. However, Mr Lee had received training from Chess about safely working at heights, including the requirement to barricade worksites, alongside verbal training from Dana.

34. At the time of the incident, neither Mr Ghosn nor Mr Lee held an Elevating Work Platform Association NSW “Yellow Card”. Prior to the incident, Mr Ghosn was asked by Mr Hollis (who did hold the necessary Yellow Card) to demonstrate he was EWP qualified by operating an EWP for several minutes.

35. Finally, neither Mr Ornig nor Mr Hollis had informed the security guards on the day of the incident that works were still ongoing.

Supervision

38. Although Mr Hollis was offsite when the incident occurred, Chess did not appoint another worker to fill his role. Despite being the construction supervisor and project manager, Mr Ornig was also not present. Mr Ghosn and Mr Lee were not supervised by any staff from Kellogg, Chess or Ignite. Mr Singh was also unsupervised, despite Kellogg’s policy requiring all visitors to the site to be supervised.

Systems of work after the incident

39. Following the incident, Kellogg implemented the following systems of work in response to Prohibition Notices issued by SafeWork NSW:

1. updated its SWMS, JRAWMS and related material for the completion of the air curtain project and retrieval of the fallen EWP;

2. conducted and recorded Toolbox Talks on the updated SWMS material which included topics relating to working at height, isolation of loading dock roller doors and barricading and fencing off all areas; and

3. engaged Two Way Cranes Pty Ltd to recover the EWP, including the provision of a lift plan document for the lift and relocation of the EWP.

40. Kellogg also undertook the following actions in response to the incident:

1. removed the external controls of the roller doors and moved the motor isolators to the roller doors to ground level;

2. increased the prominence of barriers in the loading area;

3. implemented a rule that project managers are required to review and approve SWMSs;

4. provided training to engineers and remedial painting contractors for the use of EWPs, including the use of spotters and exclusion zones;

5. provided training to warehouse workers in prevention of access to loading docks when docks are not in use and establishing exclusion zones when trucks are unloading;

6. developed and implemented a new loading and unloading Standard Operating Procedure; and

7. reviewed policies regarding permits to work, unloading trucks and contractor management.

41. Kellogg has continued to make improvements to the site following the incident such as installing new dock locks and upgrading the dock guarding. Kellogg has also replaced its former (manual) visitor and contractor induction system with an online process administered by a third-party vendor.

Offender’s case on sentence

42. Kellogg relied on the affidavit of Mr Glen Wojcinski sworn 14 August 2025. The following is a summary of his evidence in addition to matters already set out in the Agreed Statement of Facts.

43. Mr Wojcinski is the Supply Chain Director, Australia and New Zealand at Kellogg, having been in this role since September 2022. He has approximately 20 years’ experience in the food and manufacturing industry, with previous roles including supply chain and operations management. He holds a Master of Business Administration and a Graduate Certificate in Management from Charles Sturt University and a Certificate IV in Competitive Manufacturing. He also holds certification as a Supply Chain Professional from the Association for Operations Management.

44. As part of his role, Mr Wojcinksi is responsible for ensuring safety across Kellogg’s supply chains, people, business and assets and is also responsible for implementing Kellogg’s safety management system. He reports to Kellogg’s Managing Director for Australia and New Zealand.

Expression of remorse and contrition

45. Mr Wojcinski, on behalf of Kellogg, acknowledged and expressed sincere regret for the incident and its impact on Mr Ghosn, Mr Lee and their families and friends. He also acknowledged and expressed regret for the impact of the incident on any workers at the site.

46. Mr Wojcinski stated that he had seen Kellogg’s leadership emphasise, at every opportunity, that it has not taken the incident lightly, and that extensive meetings were held within the leadership team and in the wider supply chain function to reflect on it. He further stated that Kellogg is committed to ensuring an incident like this does not reoccur and has undertaken a review of its systems and procedures, with several steps having been taken to ensure site safety measures are strengthened.

47. Mr Wojcinski stated that, following the incident, he visited and spoke to Mr Ghosn at the hospital and enquired of both Mr Ghosn and Mr Lee’s wellbeing over several weeks. He also states that he was kept up to date on their ongoing wellbeing and recovery.

48. After the incident, Mr Wojcinski held on-site communications and briefed employees about the incident. An Employee Assistance Program was offered to any employees who required it.

About Kellogg

49. Kellogg has been manufacturing ready-to-eat cereal at the site for almost 100 years. The site currently operates 24 hours a day, 7 days a week. As at the end of 2024, Kellogg employed over 400 people across Australia and New Zealand as well as around 100 contractors. Kellogg also works with approximately 600 direct and indirect suppliers and sources most of its grains from Australian farmers. Kellogg manufactures over 93% of its breakfast cereal products at the site.

50. Mr Wojcinksi gave evidence of Kellogg’s extensive community contributions. Since 2013, Kellogg has donated approximately 68 million serves of food to people in need across Australia and New Zealand, including to schools, childhood centres, Indigenous and outback communities, sports clubs and charities supporting communities including through partnerships with Foodbank Australia, the Breakfast Buddies program, Ronald McDonald House and the Australian Red Cross.

51. Further, Kellogg established the Kellogg Australia Charitable Foundation in 2007, which has distributed over $2 million in funding to help local community groups. Kellogg also has a 30-year partnership with Surf Life Saving Australia and a global partnership with Movember which has helped raise over $1 million to support mental wellbeing between 2019 and 2023.

52. Kellogg has also partnered with farmers and suppliers to help reduce greenhouse gas emissions and is working towards net zero carbon emissions by 2050 and 100% reusable, recyclable or compostable packaging by 2030. It is committed to responsibly sourcing its ingredients. Finally, Kellogg has been recognised as an Employer of Choice for Gender Equality by the Workplace Gender Equality Agency.

53. Mr Wojcinksi stated that Kellogg has a ‘“safety first” culture, which involves “safety shares” at Town Halls, team updates and leadership team meetings, and safety performance metrics. It also includes the company’s “Mission Zero” initiative, which was launched in July 2024 to achieve a zero-injury workplace.

Systems of work prior to the incident

54. Mr Wojcinski gave unchallenged evidence of the following systems of work in place at the time of the incident, in addition to those set out in the Agreed Statement of Facts.

1. An established work health and safety management system that is centrally managed by Kellogg’s work health and safety team. This system establishes the standards and procedures that apply across Kellogg to ensure work health and safety compliance is integrated into all activities across the site.

2. A system designed to prevent unauthorised access to the loading dock. This included an External Warehouse Standard which provided a procedure for controlling incoming materials and monitoring visitor activity. It also included a general process for transport drivers to access the site through the security gatehouse.

3. Traffic management arrangements, including the “Moving Equipment and Pedestrian Segregation Program” for managing risks associated with segregating moving equipment and pedestrians. Prior to the incident, and in accordance with the JRAWMS, Mr Hollis and Mr Ornig had a system to prevent vehicles from entering a dock while work was being carried out which involved informing the security gatehouse of the dock being closed, having a spotter present, and placing the plastic tape barrier outside the particular dock each day so it was visible to incoming trucks.

4. Instruction and training procedures. This included all drivers being expected to complete a Driver Declaration Form. It also included the “Contractor Management and Visitor Safety Procedure” dated 21 March 2018, which explicitly required the establishment of “an induction program for contractors and visitors”. Furthermore, both Mr Ghosn and Mr Lee had completed Kellogg’s Induction Assessment for Contractors prior to commencing work at the site. Finally, the “Moving Equipment and Pedestrian Segregation Program” stated at cl 4.7.2 that contractors should be informed of Kellogg’s traffic management plan.

Systems of work after the incident

55. The detailed evidence which Mr Wojcinski gave in this regard was consistent with the Agreed Statement of Facts and is reflected in the summary at [39]–[41] above.

Consideration

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

57. I have taken into account the maximum penalty for this offence: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [31] per Gleeson CJ, Gummow, Hayne and Callinan JJ (Markarian).

Objective seriousness

58. 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) 164 CLR 465; [1988] HCA 14 at 472, 485–6, 490–1 and 496. At common law, the term “objective circumstances” was used to describe the circumstances of a crime. The gravity of the offence was assessed by reference to its objective circumstances: R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242 at [15].

59. This task requires the Court to consider where the conduct of Kellogg falls in the range of conduct covered by the offence: Baumer v The Queen (1988) 166 CLR 51; [1988] HCA 67 at 57. As Whealy JA said in BW v The Queen [2011] NSWCCA 176 at [70] (Hulme and Harrison JJ agreeing at [75]–[76]):

“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.”

60. The objective seriousness of an offence is to be determined by reference to the nature of the offending without reference to matters personal to a particular offender or class of offenders: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27].

61. 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].

62. 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) 49 NSWLR 610; [2000] NSWIRComm 71 at [82]. The question of foreseeability of the risk is to be determined objectively.

63. The Court arrives at the appropriate sentence through a process of “instinctive synthesis” in which the sentencing judge identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to the appropriate sentence given those factors: Markarian at [51].

64. The Court of Criminal Appeal examined the sentencing process with regard to the WHS Act in Nash v Silver City Drilling (NSW) Pty Ltd; Attorney General for New South Wales v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96. Under the heading “Assessment of Risk”, Basten J said:

“[34] The sentencing judge commenced his consideration with the proposition that ‘[g]reater 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.”

65. 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 pressure event of the force 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.”

66. 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 materialise. The objective seriousness of the conduct will also be affected by the ease with which mitigating steps could have been taken.”

67. The prosecutor submitted that this offence was a serious one having regard to the variety of failures which occurred in Kellogg’s systems, and asked the Court to take into account the following factors in making its assessment:

1. the foreseeable and indeed obvious nature of the risk of direct or indirect contact between a truck and persons working in the loading dock;

2. the failure of the offender to implement measures to prevent access to the loading docks whilst works were occurring,

3. the numerous key failures in the provision of training, instruction and supervision to Mr Ghosn, Mr Lee and Mr Singh;

4. the nature of the measures which could have been implemented which were not at all onerous and any one of which would have greatly reduced the risk; and

5. the potential consequences which could have arisen from Kellogg’s failure to eliminate or minimise the risk, which in this case included death or very significant injury.

68. Kellogg submitted that the objective seriousness of the offence was low. First, Kellogg relied on Chess, with whom it had a long-standing relationship of 40 years, to undertake specialised engineering work at the site that Kellogg did not have the expertise to do. Kellogg relied on Chess to ensure that workers engaged from other subcontractors were appropriately qualified, trained and supervised and had very limited involvement in relation to the work that was being undertaken.

69. Second, Chess had employed Mr Hollis as site supervisor, alongside Mr Ornig as construction supervisor and Mr Macklin as mechanical and project engineer. Mr Hollis observed there to be no barriers or warning markers in place on the day of the incident but failed to direct the workers to rectify this. Moreover, neither Mr Hollis nor Mr Ornig were present during the works, and there was no spotter in attendance on the day of the incident.

70. Third, as its workers were not involved in the performance of the work and lacked the expertise to conduct it, Kellogg was not aware that there was no supervision on the day of the incident, nor was it aware of the absence of a spotter. It accepted that there were measures it could, and should, have taken, such as ensuring the loading dock indicator lights were operational and that workers could not readily activate the roller doors to the loading dock from outside of the building.

71. Furthermore, Kellogg submitted that this is not a matter in which there were no procedures or controls in place. Rather, its various site procedures were not fully complied with in connection with the incident. As such, Kellogg submitted that the failures were reflective not of the absence of adequate systems, but instead a failure to implement them. Kellogg also pointed to the fact that WMA, Dana, MSS Security, TAS and Ignite have not been prosecuted in relation to the incident.

72. I accept that the failings of Chess in particular, as identified by Kellogg and reflected in the Agreed Statement of Facts, contributed to the manifestation of the risk. I also accept that Kellogg’s reliance upon Chess to put appropriate safety systems in place in respect of the work that Chess had been engaged to perform at the site needs to be viewed in the context of their long-standing relationship without incident. It also needs to be viewed in the context of what occurred in the days prior to the incident when supervision, barricades and spotters were in place. However, in determining the objective seriousness of the offence, the focus remains on the failure of Kellogg to meet its statutory obligation. In Workcover Authority (NSW) (Inspector Howard) v Baulderstone Hornibrook Pty Ltd (2009) 186 IR 125; [2009] NSWIRComm 92 (Baulderstone), Walton J, Vice President held at [241]–[242] (emphasis added):

“There is now ample authority for the proposition that the contribution of another entity to a risk to safety may be considered in mitigation in the assessment of penalty of a defendant. The authorities range from cases such as the present, where the contributing entity has provided services or advice which have contributed to the detriment to safety (McDonald’s) to, more commonly, cases where the entity or entities are engaged in a common project, enterprise or task with the defendant which carries out the role of a principal, contractor or fellow sub-contractor: Morrison v Waratah; Morrison v Powercoal (2005); Workcover Authority of New South Wales (Inspector Mansell) v Anytime Industrial Services Pty Ltd (2001) 110 IR 34; Workcover Authority of New South Wales (Inspector Farrell) v Morrison (No 2) (2002) 112 IR 312; Workcover Authority of New South Wales (Inspector Mansell) v Orica Australia Pty Ltd (2002) 116 IR 158 and Workcover Authority (NSW) v Consolidated Constructions Pty Ltd (2001) 109 IR 316.

The common thread running through this line of authorities is the principle that where it may be contended that an entity, other than a defendant, has contributed to a detriment to safety (either by advice or common enterprise), the question remains, in assessing penalty, what are the specific culpabilities of the defendant, the statutory obligations placed upon the defendant not having been diminished by the notion that other entities may have contributed to the risk to safety (see, for example, Morrison v Waratah at [46]). The contribution of the other entity is only relevant to the extent that its contribution casts light upon the real level of culpability of the defendant: Morrison v Waratah at [46] and McDonald’s at 437. Such an analysis may assist in understanding the reasonableness of the defendants’ actions, and may include an assessment of systems which were operating at the time of an incident giving rise to the prosecution …”

73. By its plea of guilty, Kellogg accepts that it could have taken the following reasonably practicable steps to eliminate or at least minimise the reasonably foreseeable risk:

“(a)   Prevent unauthorised access to the loading dock and use of the external control panel buttons.

(b)   Provide appropriate instruction and training to contractors, and in particular truck drivers, in relation to the operation of the loading dock roller doors, including that they are not permitted to operate the roller doors.

(c)   Develop, implement and enforce an adequate traffic management plan for the duration of the works, which included details of:

(i)   The responsibilities of the person/s responsible for managing traffic flow at the site; and/or

(ii)   Procedures for controlling traffic and mobile plant movement within the site; and/or

(iii)   The use of spotters to assist with directing traffic and/or the operation of mobile plant at the site; and/or

(iv)   The installation of barriers, exclusion zones, and signage to separate pedestrians and vehicles;

(d)   Provide contractors and workers, and in particular Mr Ghosn, Mr Lee and Mr Singh, with adequate training in relation to site-specific hazards, including working around heavy vehicles and traffic management; and/or

(e)   Provide appropriate supervision to visitors, contractors and workers at the site, and in particular Mr Ghosn, Mr Lee, and Mr Singh whilst the works were being conducted.”

74. The above measures both individually and in combination could have been implemented without great burden or inconvenience to Kellogg. Further, the Agreed Statement of Facts identifies numerous failings of Kellogg’s systems, the elimination of any one of which would have prevented the incident irrespective of the actions of Chess. Nor am I satisfied that the failings were an unfortunate coincidence of a number of “one off” incidents. In particular, the evidence before the Court was that the failure of the safety indicator lights outside the loading docks was not a recent development. Similarly, there was a history of truck drivers, on occasion, operating the loading dock control panels contrary to the terms of the “Safe Work Instruction: Unloading Trucks” policy.

75. It was plainly within the ambit of Kellogg’s control to prevent unauthorised access both to the loading dock and the external control panel. As to the former, Kellogg failed to comply with its own policy that Mr Singh be accompanied by a Kellogg worker once he moved beyond the secure entry point to the site. I have dealt above with the unauthorised access by truck drivers to the loading dock control panel. Indeed, and with reference to the second measure, it appears that the policy prohibiting truck drivers from operating the roller door control panel was not routinely communicated to truck drivers. It did not appear in the Driver Declaration Form and Mr Singh was not otherwise made aware of it.

76. As the controller of the site, Kellogg had responsibility for its traffic management plan, although Chess was also required to ensure that measures were in place to manage traffic hazards in the context of the work that it was performing. It was also Kellogg’s responsibility to conduct proper training for the contractors and workers on site, including in relation to site specific hazards such as working around heavy vehicles and the site traffic management plan. Finally, Kellogg was required to have appropriate supervision in place in relation to the air curtain project. Kellogg had a number of senior personnel in place to manage both the air curtain project and the site more generally. However, no senior personnel, in particular Mr Ornig and Mr Crispin, inspected the work site prior to the commencement of the work on the morning of the incident.

77. Nonetheless, I accept that this is not a case where no attention was paid to safety, or where there was a culture of failing to adhere to safety systems. The evidence of the extensive safety systems that Kellogg had in place demonstrates that it was intent on having and maintaining safe systems of work. The safety systems concerning the induction of delivery drivers to the site was inadequate. However, the predominant failure giving rise to this offence was Kellogg’s lack of compliance with its well documented safety systems.

78. The potential consequences of the risk materialising included death. There was more than one worker exposed to the risk. The serious injuries suffered by Mr Ghosn and Mr Lee were a manifestation of the risk.

79. Taking the above matters into account in the manner indicated, I find that the objective seriousness of the offence falls within the mid-range.

Moral culpability of Kellogg

80. As noted above, Kellogg had a longstanding relationship with Chess as the provider of engineering services at the site. Kellogg had therefore engaged well qualified engineering support to undertake work that its own staff were not qualified to do. Chess had completed a JRAWMS which required Mr Hollis (as well as Mr Ornig) to inspect the work area prior to the commencement of work each day. Accordingly, I accept that Kellogg had exercised a degree of diligence to ensure that appropriate controls were established for the works associated with the air curtain project.

81. Mr Hollis and Mr Ornig had a pre-start meeting with Mr Ghosn and Mr Lee on the morning of the incident. Kellogg was unaware that Mr Hollis had then been called to another job. Kellogg was also unaware that the spotter whom Chess allocated to the job was not at work and that no alternative spotter had been allocated. Further, the engineering team had erected barricades with danger tape and plastic cones on the two days immediately prior to the incident. There is no explanation for the absence of those measures on the morning of the incident. While such matters do not have a direct bearing upon the objective seriousness of the offence, consistent with the decision of this Court at [242] of Baulderstone, set out at [72] above, they are factors which reduce Kellogg’s moral culpability in relation to the offence.

Aggravating factors

82. The injury, emotional harm, loss or damage caused by the offence was substantial: s 21A(2)(g) CSP Act. In order for the aggravating factor to be established, the Court must be satisfied beyond reasonable doubt that the harm was greater or more deleterious than may ordinarily be expected for the subject offence: R v Youkhana [2004] NSWCCA 412 at [26].

83. The offence does not require an injury to be sustained, but merely the creation of the risk of death or serious injury. The Agreed Statement of Facts sets out the significant injuries suffered by both Mr Ghosn and Mr Lee, which plainly establish this aggravating factor. Each required surgery to insert rods, plates or pins to treat the serious fractures which they sustained in the fall. In his Victim Impact Statement dated 2 September 2025, Mr Ghosn powerfully articulated the life changing effect of the accident upon him physically, emotionally, mentally and financially and the impact of those effects on his confidence, his relationships and his sense of purpose. I have had regard to that evidence in the manner permitted by law.

84. Kellogg has 10 prior safety related convictions, the most recent being two offences against s 15(1) and a further offence against s 16(1) of the Occupational Health and Safety Act 1983 (NSW) (OHS Act) in 2000, which essentially correspond to offences for breaches of ss 19(1) and 19(2) of the WHS Act respectively: s 21A(2)(d) CSP Act. However, as these offences occurred 25 years ago, I accept that the subject offence does not demonstrate a continuing attitude of disobedience to the law. The prosecutor does not contend otherwise. I address these prior convictions in the context of mitigating factors below.

Mitigating factors

85. Kellogg submits that it does not have a significant record of previous convictions given the scale and longevity of its manufacturing operations and the fact that the most recent of its 10 safety related convictions occurred 25 years ago: s 21A(3)(e) CSP Act. The prosecutor submits that Kellogg’s criminal record, including the three convictions in 2000 for general duties offences referred to at [84] above, disentitles it to the benefit of that provision. The prosecutor points to the 14 April 2000 decision of Walton J, Vice President in WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Aust) Pty Ltd (No 2) (2000) 101 IR 261; [2000] NSWIRComm 53 (Glass) in which Kellogg was afforded leniency on the basis that its previous convictions concerned “relatively minor matters”. This decision ostensibly excluded the s 16(1) OHS Act offence conviction entered the day before Glass was handed down, which was well after the Glass 1999 hearing date. It also could not have had regard to the further offence pursuant to s 15(1) of the OHS Act of which Kellogg was convicted in May 2000. At [49] of Glass, Walton J held as follows:

“Whilst the defendant has had some prior convictions under the Factories, Shops and Industries Act 1962, these penalties concerned relatively minor matters. Having regard to the size of the corporation, the number of employees and longevity of its operations, I consider that, in all the circumstances, I should treat this corporation as one which, in relative terms, should receive discount for good industrial citizenship. This is particularly so as the defendant has operated throughout this period in a hazardous field and where it is quite evident that the defendant has strived for the establishment of good safety procedures and continues to do so.”

86. Kellogg’s criminal history precludes me from affording it the leniency that might be attracted by a first offender. However, the judicial discretion to afford an offender leniency pursuant to s 21A(3)(e) CSP Act “is not all or nothing and may be a matter of degree”: Saunders v The Queen [2022] NSWCCA 174 per Price J at [66] (Beech-Jones CJ at CL agreeing at [1] and Lonergan J agreeing at [70]). In view of the scale of Kellogg’s manufacturing operations and the passing of 25 years since it was last convicted of any offence, I am prepared to extend some leniency to Kellogg in recognition of its extended period of operation without conviction.

87. I am also prepared to find that Kellogg is otherwise of good character: s 21A(3)(f) CSP Act. The steps which it took after the incident including extensive training of staff and implementation of safety equipment around the loading area demonstrate this. Kellogg’s good character is also exemplified by its significant community involvement as outlined by Mr Wojcinski in his affidavit and summarised at [50]–[51] above. That includes the donation of more than 68 million serves of food to people in need since 2013. In that regard, I also give weight to Kellogg’s endeavours to model good corporate citizenship in its pursuit of sustainability and equal opportunity as set out above at [52].

88. I now turn to Kellogg’s likelihood of reoffending: s 21A(3)(g) CSP Act. In view of Kellogg’s history of convictions for safety related offences, to which I have already referred, and the number of independent safety systems failures which enabled the incident to occur on 3 March 2023, I cannot find, even on the balance of probabilities, that Kellogg is unlikely to reoffend. Consistent with the prosecutor’s submission, I nonetheless accept that Kellogg has good prospects of rehabilitation pursuant to s 21A(3)(h) CSP Act, both because of the 25 years that have elapsed since the previous offences occurred, and the numerous steps taken by Kellogg to improve its safety mechanisms after the subject incident.

89. Kellogg has shown remorse for the offence: s 21A(3)(i) CSP Act. Mr Wojcinski’s evidence demonstrates that Kellogg has accepted responsibility for its actions and has acknowledged that its failures led to the injury of Mr Ghosn and Mr Lee. Kellogg has also acknowledged and expressed regret concerning the impact of the incident on other workers at the site, including those who responded to the incident. Kellogg’s early guilty plea is a further demonstration of contrition.

90. Kellogg entered a plea of guilty on 30 June 2025 to the charge as particularised in the summons issued on 28 February 2025. This was only the second mention of these proceedings. Kellogg is entitled to a discount on penalty that reflects the utilitarian value of that early plea: R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 at [123]; R v Borkowski [2009] NSWCCA 102 at [32]. I accept the joint position of the parties that a discount of 25% is appropriate in the circumstances: ss 21A(3)(k) and 22 CSP Act.

91. Kellogg submitted, and I accept, that its cooperation with the authorities is a matter which should operate in mitigation of the sentence to be imposed upon it: s 21A(3)(m) CSP Act. Kellogg’s conduct in response to the incident extended beyond bare compliance with SafeWork NSW’s investigation and included removal of the external control panels for the roller doors and the implementation of an online contractor induction system administered by a third-party vendor. Kellogg also facilitated interviews between SafeWork NSW and personnel on the site who were employed by Chess, Ignite, and MSS Security.

Deterrence

92. The penalty imposed in relation to this offence must provide for general deterrence.

93. Specific deterrence is also a relevant consideration, given the number of safety systems failures which enabled the incident to occur. Nonetheless, the evidence establishes that, at the time of the incident, Kellogg was a company which paid high regard to its WHS Act responsibilities. I am fortified in this view by the measures which have been implemented since the incident to improve Kellogg’s safety systems. I also note the attendance at the sentencing proceedings of Kellogg’s Legal Director and Company Secretary together with its’ Senior Legal Counsel as a demonstration of the seriousness with which Kellogg views this matter. These are factors which operate to reduce the weight that specific deterrence might otherwise attract in view of the continuing scale of Kellogg’s manufacturing operations.

Capacity to pay a fine

94. The Court is required to have regard to s 6 of the Fines Act 1996 (NSW) before imposing a fine. Kellogg has not provided any evidence concerning its capacity to pay a fine and makes no submission in that regard.

95. In Unity Pty Ltd v SafeWork NSW [2018] NSWCCA 266 at [79] the Court of Criminal Appeal recognised that a fine which may be crippling to a small business may have virtually no impact on the financial operations of a large corporation and that the maximum penalty for the offence was “undoubtedly” set having regard to that circumstance. I have regard to that matter in determining the appropriate penalty.

Penalty

96. Kellogg was convicted of the offence as charged pursuant to an order that I made on 4 September 2025.

97. The appropriate fine is $680,000, which will be reduced by 25% to reflect the plea of guilty.

98. I make the following orders:

1. I impose a fine of $510,000.

2. Kellogg is to pay the prosecutor’s costs of the proceedings as agreed or assessed.

3. Pursuant to s 122(2) Fines Act 1996 (NSW), 50% of the fine is to be paid to the prosecutor.

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Decision last updated: 19 September 2025