SafeWork NSW v Saveba Pty Ltd

[2025] NSWDC 31

District Court

New South Wales

Medium Neutral Citation:

SafeWork NSW v Saveba Pty Ltd [2025] NSWDC 31

Hearing dates:

07 February 2025

Date of orders:

26 February 2025

Decision date:

26 February 2025

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

1   Saveba Pty Ltd is convicted.

2   I impose a fine of $390,000.

3   The offender is to pay the prosecutor’s costs of the proceedings, as agreed or assessed.

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

Catchwords:

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

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

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

WORK HEALTH AND SAFETY – worker not qualified to complete tasks

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999

Fines Act 1996

Work Health and Safety Act 2011

Work Health and Safety Regulation 2017

Cases Cited:

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

Jahandideh v R [2014] NSWCCA 178

R v Borkowski (2009) 195 A Crim R 1

R v Thomson & Houlton (2000) 49 NSWLR 383

R v Youkhana [2004] NSWCCA 412

Texts Cited:

SafeWork Australia Workplace traffic management, guidance material, published April 2021

SafeWork Australia Code of Practice: How to manage work health and safety risks, published August 2019

SafeWork Australia Code of Practice: Managing risks of plant in the workplace, published August 2019

Category:

Sentence

Parties:

SafeWork NSW (Prosecutor)
Saveba Pty Ltd (Offender)

Representation:

Counsel:
A Mykkeltvedt (Prosecutor)
E Aitken (Offender)

Solicitors:
Legal, Department of Customer Service (Prosecutor)
Wotton Kearney (Offender)

File Number(s):

2024/29608

Publication restriction:

None

JUDGMENT

Introduction

1. Saveba Pty Ltd (the offender) appears for sentence after pleading guilty to an offence pursuant to s 32 of the Work Health and Safety Act 2011 (the Act) in that it failed to comply with the health and safety duty it owed pursuant to s 19(1) of the Act and thereby exposed Zayne Krupowicz to a risk of death or serious injury.

2. The maximum penalty for the s 32 offence is a fine of 17,315 penalty units ($1,860,843).

Facts

Background

3. The offender operated a business involving the retail sale of household furniture items under the business name “Coco Republic”.

4. The offender operated a warehouse at 2-6 Dolerite Way, Pemulwuy (the site).

Labor hire company - Momentum

5. A number of workers at the site were assigned to work for the offender by various labour hire companies including Momentum Consulting Pty Ltd (Momentum). The offender and Momentum entered into an agreement for the provision of permanent recruitment services on 16 June 2014.

6. Mr Krupowicz was employed by Momentum and assigned to the offender to perform quality control duties.

7. On 14 September 2021, Mr Krupowicz was engaged by Momentum. Chezelle Richards, Senior Account Manager of Momentum, screened Mr Krupowicz via telephone for his suitability to work at the site.

8. On 15 September 2021, Ms Richards conducted a WhatsApp interview with Mr Krupowicz. The interview included a discussion of his application form, review of medical information, Work, Health and Safety (WHS) policies, workplace bullying & harassment policies, labour hire arrangements, Personal Protective Equipment (PPE) and the general process for work assignments.

9. On 16 September 2021, Momentum booked Mr Krupowicz into a warehouse store person's role on a hire arrangement with the offender.

10. On 20 September 2021, Mr Krupowicz commenced working at the site.

11. Mr Krupowicz was not provided with adequate training, instruction, or information as to the work he would undertake at the site. Nor was he informed of the risks associated with that work and of the control measures required to be in place to ensure his safety.

12. The induction documents generally provided by the offender to its workers included a copy of the traffic management plan. The induction did not include any detailed discussion of the traffic management plan.

13. The offender does not hold any induction records for Mr Krupowicz as these records were lost, although he did undertake induction training.

14. Mr Krupowicz received some ad-hoc instruction in relation to the basic operation of the pallet riders.

15. Between 20 September 2021 and 9 February 2022, Momentum contacted Mr Krupowicz by phone approximately four times and visited him at the site on one occasion on 1 November 2021.

Relevant workers

16. Alfred Fifita was employed by Momentum and hired to the offender to perform quality control duties. Mr Fifita commenced working at the site on or around 25 October 2021.

17. Steven Kaliti was an outbound stock team leader employed by the offender. On the day of the incident, Mr Kaliti was supervising Mr Krupowicz and Mr Fifita at the site.

Pallet riders

18. The two electric pallet riders involved in the incident were Toyota LPE200 Ride-On Pallet Movers (LPE200).

19. The pallet riders were hired by the offender on a five-year lease agreement through Toyota Material Handling Australia Pty Ltd (TMHA) on 21 October 2019.

The incident on 9 February 2022

20. Workers, including Mr Fifita and Mr Krupowicz, were generally supervised by the warehouse supervisor or team leader who would delegate tasks and work locations based on the worker's skills on a day-to-day basis, depending on what work was required on any particular day. Team leaders, including Mr Kaliti, would generally assign workers their tasks for the shift, and then commence working on other tasks including packing and computer administration tasks.

21. On 9 February 2022, Mr Kaliti instructed Mr Krupowicz to use a pallet rider to load a shipping container. Prior to doing so, Mr Kaliti did not verify Mr Krupowicz's competency in operating the pallet rider.

22. On 9 February 2022 at approximately 7:03pm, Mr Krupowicz was operating an electric pallet rider at the site. He was operating the pallet rider in an area of the site known as the "Hard Stand". Mr Krupowicz began travelling on the pallet rider from a shipping container in the “Hard Stand” in the direction of the warehouse interior.

23. Mr Fifita was also operating an electric pallet rider, moving from the warehouse interior toward the “Hard Stand”.

24. Both workers were operating the respective pallet riders driving toward each other in reverse with the power unit first (as opposed to “fork first” travel). As the workers approached each other, they each attempted to swerve in order to avoid a collision. Mr Krupowicz and Mr Fifita swerved the pallet riders in the same direction toward each other, causing the platforms of the pallet riders that Mr Krupowicz and Mr Fifita were standing on to come into contact with each other.

25. At the time of the collision, Mr Krupowicz had one foot hanging in front of the platform of his pallet rider. Mr Fifita's pallet rider platform collided with Mr Krupowicz's pallet rider platform and came into contact with Mr Krupowicz's overhanging foot.

26. Mr Kaliti did not witness the incident.

Injuries

27. Mr Krupowicz suffered a significant crush injury and a compound fracture to his right foot. Following the injury, Mr Krupowicz had his right leg amputated below the knee.

The offender’s systems of work prior to the incident

Safety at workplace

28. Prior to the incident, the offender provided some workers, including Mr Fifita, with an “Evacuation Map” of the site which was annexed to a document titled “Visitor / Contractor Induction”. The Evacuation Map indicated pedestrian walkways, emergency exits and certain areas of the site. Some workers, including Mr Fifita, were also provided with a “Visitor Site Safety Induction Assessment” in the induction documents.

29. Mr Krupowicz was not aware of the existence of the Evacuation Map or the Visitor Site Safety Induction Assessment.

30. The offender had an undated document titled “Traffic Management Plan” (TMP). The TMP was a map of the site. TMP had different warehouse areas noted, compared to the Evacuation Map. The “Quick Pick Products” area on the TMP was identified as warehouse racking and oversized storage on the Evacuation Map. The TMP did not provide information or instruction on traffic management in relation to the use of pallet riders, including a right of way for the operation of mobile plant, directions of travel, or which areas particular mobile plant could be operated in.

31. The TMP was not effectively communicated to all workers, including Mr Krupowicz and Mr Fifita, who were not aware of the existence of the TMP. The offender did not provide workers, including Mr Fifita and Mr Krupowicz, with adequate training, information or instruction in relation to the TMP.

32. The offender had a document titled “Traffic Management Procedure” (the Procedure) dated February 2020. The Procedure required that all employees, contractors and visitors must have completed the site induction and must adhere to the TMP. The procedure did not provide information or instruction on directions of travel for mobile plant (ie, keep left at all times when operating plant to avoid collisions).

33. Mr Krupowicz had not seen and was not aware of the Procedure before the incident.

34. The offender had an undated document titled “Safe Work Procedure” (SWP) for working with mobile equipment such as forklifts, high reach and pallet riders. The SWP did not include adequate information or direction regarding the safe use of pallet riders including in relation to the use of horns, direction of travel, right of way and appropriate speeds and appropriate positioning of body and limbs during the operation of mobile plant.

35. Workers, including Mr Fifita and Mr Krupowicz, were not aware of the existence of the SWP or its contents for pallet rider operation. The information in the SWP was not enforced by supervisors, including Mr Kaliti. Workers’ understanding of the SWP was not assessed, verified or documented.

36. The offender had a dedicated WHS staff, but they were not based at the site.

Use of pallet riders

37. The offender had a manual for the LPE200. The Operator's Manual for the LPE 200, published on 5 September 2016, provides information including, but not limited to, that operators should:

1. pass training to establish their competency in operating the specific type of plant;

2. avoid turning with high speed;

3. be attentive about other personnel and other trucks; and

4. perform a daily check according to the procedures in the manual.

38. Workers, including Mr Fifita and Mr Krupowicz, were not provided with appropriate training, or assessed for their competency by a supervisor, in operating the mobile plant.

39. Instead, they received informal instruction from other workers regarding the operation of the pallet riders, which was not documented or verified by a supervisor. The informal instructions included being told to beep the horn on the pallet riders when travelling through doors and into the warehouse.

40. The competency of workers, including Mr Fifita and Mr Krupowicz, in relation to the use of pallet riders was not assessed, verified or documented by a supervisor. There were no documented procedures for the training or verification of workers’ competency by supervisors in the operation of the pallet riders.

41. The offender did not ensure that an appropriately competent person was responsible for the supervision of workers' use of pallet riders. Workers, including Mr Fifita and Mr Krupowicz, were not subject to adequate supervision by supervisors to ensure that they were operating the pallet riders safely on the day of the incident, including always keeping their limbs within the parameters of the mobile plant.

Guidance material available at the time of the incident

42. There was a considerable volume of guidance material available to persons conducting similar businesses to control the pleaded risk. The material can be summarised as below.

43. Clause 39 Work Health and Safety Regulation 2017 (WHS Regulation) provides, in part, that:

(2)    The person must ensure that information, training and instruction provided to a worker is suitable and adequate having regard to-

(a)    the nature of the work carried out by the worker, and

(b)    the nature of the risks associated with the work at the time the information, training or instruction is provided.

44. Clause 214 of the WHS Regulation relevantly provides, that:

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

…

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

45. Clause 215 of the WHS Regulation relevantly provides, that:

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

46. The SafeWork Code of Practice: How to manage work health and safety risks, published in August 2019 provides that PCBUs should:

(a)    Train your workers in the work procedure that describes the task, identifies the hazards and documents how the task is to be performed to minimise the risks; and

(b)    Train your workers in the work procedure to ensure that they are able to perform the task safely. Training must cover the nature of the work, the associated risks and the control measures to be implemented.

47. The SafeWork Code of Practice: Managing the risks of plant in the workplace, published in August 2019 provides that PCBUs should:

(a)    Before a PCBU's workers or other persons use the plant in a workplace, a PCBU must, as far as is reasonably practicable, provide them with information, training, instruction and organise ongoing supervision as necessary to protect them from risks arising from the use of the plant; and

(b)    Provide information including instruction on; the correct use of guarding and other control measures, how to safely access and operate the plant, traffic rules, rights of way, clearances and no-go areas for mobile plant.

48. The SafeWork Australia, Workplace traffic management guidance material, published in April 2021 provides that PCBUs should:

(a)    Use engineering control measures, such as speed limiters on plant;

(b)    Include in the traffic management plan 'the desired flow of pedestrian and vehicle movements;

(c)    Regularly monitor a review control measures including traffic management plans; and

(d)    Train workers in the content of any traffic management plan.

The offender's actions taken following the incident

49. The offender took the following actions following the incident:

1. a dedicated WHS staff member was employed to be based at the site;

2. a review and update of the TMP and the Procedure was conducted, which included the following additions to the Procedure:

1. pedestrians must ensure they have eye contact with any Material Handling Equipment Operator, keep to the left of the walkway where possible, and give way to mobile plant; and

2. mobile plant operators must:

1. hold the required training and licensing for the equipment being used;

2. obey applicable road traffic rules;

3. always drive mobile plant to the left where possible to avoid collision;

4. have good vision around them when operating mobile plant;

5. make eye contact with other operators and/or pedestrians in the area; and

6. stop and sound the plant horn at the ends of all aisles and at doorways.

3. a system of assessment of the competency of workers in the use of pallet riders was introduced; and

4. new electric pallet riders were leased through THMA with additional safety features, in particular, engineering controls in the form of guarding for the operator.

Offender’s Case on Sentence

50. The offender read and relied upon the affidavit of Timothy Schaafsma affirmed on 23 January 2025. The following is a summary of his evidence. I will try not to repeat matters set out in the Agreed Statement of Facts.

51. Mr Schaafsma is the Chief Executive Officer (CEO) of the offender and Coco Republic. He has been the CEO since 15 March 2023 and became a director of the offender on 25 July 2023.

52. Mr Schaafsma stated in his affidavit that as the CEO, he has ultimate responsibility for the offender’s operations and performance, including making decisions as to the business investments within the delegated authority and governance requirements of the offender.

53. Mr Schaafsma was not the CEO of the offender at the time of the incident. However, by virtue of his current position, he has knowledge of the offender’s pre-incident processes and procedures.

Remorse and contrition

54. On behalf of the offender, Mr Schaafsma expressed deep contrition and regret that the incident occurred and acknowledged its consequences.

55. Mr Schaafsma acknowledged and regretted the serious impact that the incident has had on Mr Krupowicz and his family, as well as on the offender's other workers.

56. He is deeply sorry and apologises for the incident. Along with offender's management team, he apologises unreservedly to Mr Krupowicz, his family, the workers affected and the Court.

57. The incident has had a salutary effect on Mr Schaafsma personally, all the management team and staff of the offender. Mr Schaafsma has sought to ensure that appropriate actions have been taken by the offender, and will continue to be taken, through the constant review and implementation of its procedures, to ensure that a similar incident does not occur in the future.

58. Whilst it is not possible to correct the actions of the past, the offender is committed to a safer future for its workers going forward. It is glad that the measures taken since the incident have resulted in no other incidents occurring, and it is more confident in its safety systems and controls moving forward.

Background   

59. The offender was registered as a company on 1 March 1984. Since then, it has traded under the names of “Town & Country Living”, “Coco Republic”, ‘Max Sparrow” and “Coco Republic Outdoor”. In October 2021, the offender partnered with a Los Angeles-based private equity firm STORY3 Capital Partners. As a result of the transaction, the offender's ultimate parent company became (and remains) Coco Republic, Inc which is based in the United States of America.

60. The offender is a mid-size organisation with over 400 employees in Australia and New Zealand. Its organisational structure is largely a flat one. The workforce in Australia and New Zealand are mostly permanent employees with some labour hire workers when required from time to time due to demand and in peak seasons.

61. As part of its business, the offender operates from retail storefronts, a head office and a number of warehouses, where products are packaged, stored and distributed.

The offender's WHS personnel

62. The following employees were responsible for WHS matters at the time of the incident:

1. Nic Foster - Co-CEO/COO;

2. Daniel Berry, Head of Finance and Governance, responsible for general WHS compliance;

3. Alex Linton - Chief Supply Chain Officer;

4. Dean Walker - Head of Logistics;

5. Shane Gay - Logistics Manager;

6. Stewart Kennedy - Regional Logistics Manager;

7. Chris OToole - Warehouse Supervisor;

8. Anthony Young - Head of People and Culture, responsible for the oversight of the general WHS management system, policy, education and safety committee procedures;

9. Heike Sassenberg - Senior Human Resources partner, responsible for general WHS management system, policy, education and safety committee procedures;

10. Desoline Corcoran - Health and Safety advisor, responsible for WHS policy, training and practices for warehouse sites; and

11. Divisions managers and department managers, including the Logistics Management Team, responsible for the day-to-day operational management of WHS and compliance with safe working procedures.

63. Mr Schaafsma is duly informed and believes that the following to be a correct account of the relevant circumstances as they existed prior to the incident:

1. In October 2021, Mr Kennedy was appointed as Regional Logistics Manager and commenced a review of all machinery and leasing arrangements as part of his initiative to increase safety at the offender.

2. Mr Foster would attend warehouse locations regularly and consult with Mr Walker and Mr Kennedy. He would also meet with Mr Linton to review and discuss logistics operations including WHS matters and risks. He would then meet weekly with Mr Byrne and Mr Spon-Smith to review all business operations and advise them both of any safety matters.

3. The offender's board would also meet at least on a quarterly basis and produce a report that would outline any WHS updates.

The site

64. The site is used for warehouse storage, distribution, corporate administration and a location to photograph products for advertising purposes.

65. Mr Schaafsma stated that prior to being assigned for placement at the site, Mr Krupowicz underwent a thorough online interview process with Ms Richards, where the employment position and the requisite tasks that would be involved in undertaking the position were discussed. He deposed that Mr Krupowicz was aware that he was hired to work as a warehouse store person and this position involved inbound and outbound stock movement using the pallet riders, in addition to quality check of goods.

66. Mr Schaafsma stated that prior to the incident, Mr Krupowicz was observed as competent by warehouse supervisor, Mr OToole and other warehouse management staff.

Safety systems prior to and at the time of the incident

67. Mr Schaafsma stated that at the time of the incident, the offender had policies, procedures and practices in place that formed its overall safety system, and which were administered by its Human Resource department to all employees.

68. Mr O'Toole regularly consulted with the workforce regarding any issues and proposed improvements. To the extent there were ever any incidents, Mr O'Toole was consulted as to how and when to address matters as they arose.

69. Mr Schaafsma further stated that the safety systems in place prior to the incident were as follows:

1. all workers, including Mr Krupowicz, were issued the Site Safety Induction Rules, prior to commencing with the offender;

2. the offender implemented the TMP and the Procedure;

3. all employees, visitors and contractors were made aware of the TMP as it was annexed to the offender's Site Safety Induction Rules and outlines clearly marked pathways for pallet riders;

4. the offender had developed and implemented a safe system of work in relation to pallet riders, the SWP. Warehouse workers were regularly reminded of the SWP during daily toolbox talks and they were each provided with access to the operation manual upon request;

5. there was also an established on-site competent buddy training and observation program which relevantly, included training on pre-operational and operational safety checks for mobile equipment;

6. the offender undertook regular toolbox talks, which occurred daily prior to COVID-19 and then reduced to approximately three times per week during COVID-19, before gradually returning to daily talks when the pandemic receded;

7. the warehouse manager at the site established a competency checklist for supervisors to assess a worker's level of competency in respect of machine operation and health and safety;

8. supervisors and warehouse managers were appraised annually, with a six-monthly check in;

9. Standard Operating Procedures (SOP) were also established for all key functions at the Site and were made available to employees upon request; and

10. physical barriers were erected in areas where pedestrian activity normally occurs to signify the mobile plant exclusion zones.

70. At the time of the incident, Mr Kennedy was already undergoing a process of consultation to update the offender's machinery lease agreements, including the pallet riders. This review process was completed after the incident.

Safety systems following the incident

71. Following the incident, the offender undertook prompt action to review and improve its WHS systems.

Safety at workplace

72. The company intranet site, Cocoshare, contains a health and safety page with safety information, incident reporting forms, employee wellness assistance and updates on safety initiatives and resources.

73. All workers are now asked to complete a health and safety awareness training module online, as a part of induction training, which must be completed prior to the commencement of their employment.

74. The offender has also updated its incident reporting procedures, which is now completed online through Safety Champion. Senior management are notified of any incident report or new hazard that is logged into the system, which is then dealt with accordingly.

75. The induction process for new workers has also been reviewed and updated. When a worker starts at one of the offender's warehouse sites, they must complete the induction course specific to their respective location.

76. The TMP was reviewed and updated into a Traffic map and a Traffic Management Procedure. The offender now ensures that all workers understand the TMP through regular toolbox talks and Site Safety Inductions.

77. Three copies are currently on display in the staff lunchroom, warehouse entry and the warehouse admin office entry. Paper copies are also available at the sign in desk and on the Warehouse Manager's desk.

Use of pallet riders

78. Following the incident, the offender promptly undertook an examination of the existing pallet riders for any mechanical faults.

79. The offender also leased new LPE200 pallet riders through THMA with additional safety features, for example engineering controls such as the platform of the pallet riders now being partially enclosed.

80. In addition to the technical updates to the pallet riders, the offender undertook a thorough and comprehensive review of all policies and procedures as they relate to mobile equipment, including the following:

1. the SOP for pallet riders was amended to adequately address pre-operational and operational safety checks as well as include information on emergency stopping procedures;

2. training verification procedures were implemented, including electronic recording of training and validation of competency using the offender's Safety Champion software;

3. all workers who are now authorised to operate pallet riders must complete a feedback/consultation sheet which requires assurance that the worker has reviewed the SOP and completed the task assessment for the safe operation of pallet riders used at the site;

4. toolbox talks on the safe use of pallet riders occur when training on new equipment or safety processes is taking place. These toolbox talks are undertaken by Allan Partlin who is the Health and Safety Representative at the site; and

5. the new electric pallet riders have additional safety signage displayed on them regarding their safety features.

WHS Committee

81. A new WHS Committee comprising senior leadership was established; of which Mr Schaafsma is the chairperson.

82. The WHS committee has been involved in reviewing new equipment and consulting with team members about the use of the equipment.

83. To promote awareness of safety protocols and procedures the WHS Committee also sends regular companywide correspondence with safety quizzes and new updates on the WHS policies and procedures.

The offender as a corporate citizen

84. The offender has been contributing to the community and charities in a number of ways, including the following activities in recent years:

1. major supporter for over 15 years of the St Vincent's Curran Foundation, supporting public health at St Vincent's Hospital Sydney;

2. long term supporter of the Sydney Children's Hospital Randwick via event support and sponsorship of events including the Silver Party and the Blue Lunch;

3. key contributor to the furnishing of the Nelune Comprehensive Cancer Centre at Prince of Wales Public Hospital Randwick;

4. regular corporate contributor via team attendance in Clean Up Australia Day programs;

5. supported a number of projects through both the Property Industry Foundation and separately the Sebastian Foundation focused on setting up accommodation for Women and Children impacted by domestic violence; and

6. provides traineeships to develop the skills, talents and confidence in young people working across all business units of the offender.

85. Beyond this, the offender financially contributes to a number of charitable initiatives including:

1. St Vincent's Curran Foundation;

2. Richmond Charity;

3. Channel Seven Perth Telethon;

4. Property Industry Foundation; and

5. The Lismore Floor Support.

Prior convictions

86. Neither the offender nor Mr Schaafsma have any prior convictions under the Act. Mr Schaafsma stated that to the best of his knowledge, he is not aware of any incidents that have been required to be notified to SafeWork prior to or following the incident.

Consideration

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

Objective seriousness

88. The s 32 offence involves some objective gravity. The offender was responsible for the system of work and supplied the necessary equipment. The risk of workers being crushed or coming into contact with mobile plant, such as pallet riders, while they were in operation at the workplace was obvious and known to the offender. The need for appropriate system, training and supervision was also known, but poorly addressed. By its plea of guilty the offender admitted that it should have had adequate systems in place, trained the workers on those systems and ensured they were competent to operate the mobile plant used in the warehouse and provided adequate supervision. . The likelihood of the risk coming home if appropriate control measures were not taken was moderate. The control measures that should have been implemented were simple, inexpensive and well known to the offender.

89. The pleaded risk was a risk of serious injury only. The injuries sustained by Mr Krupowicz were serious. He was in his early 20s at the time of the incident and has been left with a life-long disability that has significantly curtailed a very active lifestyle. Understandably, he has also suffered psychological sequelae as a result of his serious injury and consequent disability.

90. I have taken into account the maximum penalty for the offence.

Deterrence

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

92. There is some need for specific deterrence. In this case, the offender still operates a business that potentially exposes workers to risks as a result of its operation. Conversely, the offender has taken comprehensive and timely steps to improve its processes and safety system as a result of the incident.

Aggravating factors

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

Mitigating factors

94. The offender does not have any record of previous convictions: s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999 (NSW). The offender has been operating its business since March 1984.

95. The offender has good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. The offender has taken steps to respond to the incident and has demonstrated that it has good prospects of rehabilitation.

96. The offender has demonstrated remorse: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. Mr Schaafsma, on behalf of the offender, has expressed remorse for the injury sustained by Mr Krupowicz and accepted responsibility for its failure to comply with its duty under the Act. I accept this to be a genuine expression of contrition. The plea of guilty also indicates remorse.

97. The offender is a good corporate citizen. The offender has supported community groups and charities and provided financial contributions.

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

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

Capacity to pay a fine

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

101. The offender did not contend that it had a reduced capacity to pay a fine.

Penalty

102. Saveba Pty Ltd is convicted.

103. I have taken into account the Victim Impact Statement of Mr Krupowicz.

104. The appropriate fine is one of $520,000 which will be reduced by 25% to reflect the discount for the plea of guilty.

105. I impose a fine of $390,000.

106. The offender is to pay the prosecutor’s costs of the proceedings, as agreed or assessed.

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

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Decision last updated: 26 February 2025