//
[2025] NSWDC 433
General information, not legal advice.
District Court of NSW
2025-10-29
Russell SC DCJ
Original judgment source is linked above.
Zoe will write a short plain-English brief of this judgment and email it to you: what it was about, what the court decided and why. It can take up to a minute.
General information, not legal advice.
Or create a free account to save it and ask Zoe follow-up questions.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: SafeWork NSW v JBS Australia Pty Ltd [2025] NSWDC 433
Hearing dates: 15 October 2025
Date of orders: 29 October 2025
Decision date: 29 October 2025
Jurisdiction: Criminal
Before: Russell SC DCJ
Decision: (1) JBS Australia Pty Ltd was convicted on 15 October 2025.
(2) The appropriate fine is $440,000 but that will be reduced by 25% to reflect the early plea of guilty.
(3) Order JBS Australia Pty Ltd to pay a fine of $330,000.
(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 JBS Australia Pty Ltd to pay the prosecutor’s costs agreed in the amount of $44,242.31.
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
COSTS – prosecution costs
OTHER – worker struck by forklift – worker on foot using forklift door – failure to enforce forklift door being in “automatic” mode – failure to enforce personnel door as the only means for workers on foot to enter – failure to provide adequate supervision – failure to undertake inspections and audits to verify adequate controls of the risk were implemented
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 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, 19, 32
Work Health and Safety Regulation 2017 (NSW), cll 34, 35, 37, 38, 39, 214, 215
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
Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610
Mahdi Jahandideh v The Queen [2014] NSWCCA 178
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
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
SafeWork NSW v JBS Australia Pty Ltd [2020] NSWDC 678
SafeWork NSW v JBS Australia Pty Ltd (No 4) [2023] NSWDC 473
R v McNaughton (2006) 66 NSWLR 566 at [26]
SafeWork NSW v Deicorp Pty Ltd [2022] NSWDC 194 at [104]
Texts Cited: Australian Standard AS 2359.2-2013 Powered industrial trucks - Part 2: Operations
Safe Work Australia, General Guide for Workplace Traffic Management, July 2014
Safe Work Australia, Traffic management: Guide for warehousing, April 2021
SafeWork NSW, Code of practice - Managing the risks of plant in the workplace, August 2019
SafeWork NSW, Forklift Safety Guide for Employers, 14 February 2020
SafeWork NSW, Incident Information Release Forklift Truck Tip Over Fatality, 25 May 2022
SafeWork NSW, Working with or around mobile plant safety alert, 30 January 2014
Category: Sentence
Parties: SafeWork NSW (Prosecutor)
JBS Australia Pty Ltd (Defendant)
Representation: Counsel:
C Magee (Prosecutor)
P Sharp (Defendant)
Solicitors:
Department of Customer Service (Prosecutor)
Norton Rose Fulbright (Defendant)
File Number(s): 2024/227973
JBS Australia Pty Ltd (JBS) operates a feedlot, farm and processing facility where Mr William Gaynes was employed as a cold-stores attendant. On 14 July 2022 Mr Gaynes was performing duties in the chilled stack-down area of the facility when he was struck by a reversing forklift. The forklift ran over Mr Gaynes’ left leg and he suffered serious injuries.
JBS has pleaded guilty to an offence that as a person who had a work health and safety duty pursuant to s 19 of the Work Health and Safety Act 2011 (NSW) (the WHS Act) it failed to comply with that duty and thereby exposed Mr Gaynes to a risk of death or serious injury contrary to s 32 of the WHS Act.
The maximum penalty for the offence is a fine of $1,860,843.
“The risk was the risk of workers, in particular Mr Gaynes, suffering serious injury or death as a result of being struck and run over by a forklift, whilst undertaking work in the chilled stack-down area at the site.”
“The defendant failed to ensure so far as was reasonably practicable, the health and safety of workers, in particular Mr Gaynes, in that it failed to take one or more of the following reasonably practicable measures to eliminate the risk to the health and safety of the workers, or, alternatively, if it was not reasonably practicable to eliminate the risk, to minimise the risk to the health and safety of the workers:
(a) Enforce a requirement that the rapid close door was placed in the “automatic” mode and unobstructed at all times that work was being conducted in the chilled stack-down area.
(b) Enforce a requirement that the personnel access door was the only means permitted for workers to enter and exit the chilled stack-down area.
(c) Provide adequate supervision to workers, including by adequately training supervisors in their roles.
(d) Undertaking inspections and audits of the site to verify that adequate controls had been implemented to manage the risk, including the controls set out at paragraph 13(a) – (c) above.”
The parties presented an Amended Statement of Facts (ASOF) and this material is summarised below.
JBS operates Australia's largest meat and food processing business. JBS has a number of workplaces in Australia, including processing facilities, feedlots, and distribution centres.
JBS operates a feedlot, farm and processing facility in Yanco NSW (the site). The site is known for its production of grain-fed ‘Riverina Black Angus Beef’ and is one of Australia's two integrated feedlot and processing facilities. The feedlot has a capacity for 46,000 head of beef cattle.
The meat processing work at the site involves cattle being slaughtered and broken down before being chilled and packaged and put through a chiller tunnel. The chilled product is then taken via conveyor belts to a palletising area known as the “chilled stack-down area” (also known as palletizing area 37A). The site processes a number of different beef products with distinct product codes.
At the time of the incident, the chilled stack-down area included the following:
Various doors, including:
(a) a personnel access door; and (b) a rapid roller door which has a blue curtain.
Two conveyor lines.
Two machines, being a "Mercer'' machine and a "Fibre King" packaging machine. The Fibre King machine is used to put lids on boxes of product before they travel down a conveyor line. The Fibre King machine includes a spiral conveyor.
At least 8 mobile tables (spring loaded, pallet lift tables) with moveable discs on top, which were used to stack pallets.
Red painted lines on the ground within which pallets were to be stacked.
The load-out area was adjacent to the chilled stack-down area.
Entry points to the chilled stack-down area included:
the personnel access door, being the door that workers were required to use to enter and exit the chilled stack-down area from the load-out area; and
the rapid roller door which was used to allow entry and exit of forklifts from the loadout area to the chilled stack-down area. The rapid roller door also served to keep the chilled stack-down area cool.
Only forklifts (and not pedestrians) were permitted to use the rapid roller door to enter and exit the chilled stack-down area from the load-out area. This was communicated to workers via signage.
Adjacent to the rapid roller door inside the chilled stack-down area, there was a control panel which allowed the door to be placed in manual or automatic mode. If the rapid roller door was in manual mode, it could be opened and closed using the control buttons on the control panel. The location of the control panel was on the wall on the right-hand side of the rapid roller door.
If the rapid roller door was in automatic mode, the door would be activated (ie opened) by a forklift travelling over an electromagnetic sensor in the ground, known as an induction loop sensor. There were two induction loop sensors located on either side of the rapid roller door - one in the load out area, and one in the chilled stack-down area. As soon as any part of the forklift crossed onto the sensor, amber lights would flash and the rapid roller door would go up. The sensor could not be activated by a person walking over it. When the rapid roller door was in automatic mode, it therefore served as a control measure for traffic management to limit the ability for pedestrians to move between the chilled stack-down area and load out area using the rapid roller door, rather than the personnel access door.
In addition to the induction loop sensors, once the rapid roller door was opened by the forklift, there was another sensor that would detect if there was anything (a person or an object) directly under the curtain of the rapid roller door. If a person or object was directly under the curtain of the rapid roller door, the rapid roller door would remain open until the person or object was no longer underneath the curtain.
Once products entered the chilled stack-down area via conveyor belt, pallets were stacked with products labelled with the same product code. These were then removed by forklift and placed on the floor to be scanned. The forklift operator then placed an empty pallet back to be filled.
Workers responsible for scanning would then scan the pallet labels and cartons within the pallet using a hand-held scanner gun. The hand-held scanner gun required batteries which usually needed to be replaced two or three times a night. Those batteries were located in the office of the load-out area, which was adjacent to the chilled stack-down area. Once scanned, the pallets were transported by forklift to the load-out area.
Once a product with a different product code was loaded onto the conveyor belt, the workers were required to perform a “changeover” which involved pallets stacked with the previous product being moved off to make way for an empty pallet to stack the incoming product.
There was usually one forklift operating in the area moving and collecting pallets.
The following workers worked in the chilled stack-down area:
Mr William Gaynes - who had been employed by JBS as a cold-stores attendant since February 2020;
Mr David Hammond - who was employed by JBS as a forklift operator;
Mr Chad Dhari - who was employed by Labour Solutions Australia to work at the conveyor; and
Mr Erik Leigh Jenssen - who had been employed by JBS as a leading hand since about 2010.
Mr Jenssen was the supervisor of Mr Gaynes, Mr Dhari and Mr Hammond.
On 14 July 2022, Mr Gaynes and Mr Dhari commenced their shift at 3pm. Mr Hammond arrived at the site at about 2:30 pm and clocked on at about 2.50pm. Mr Jenssen arrived at the Site at around 1:45pm.
Mr Gaynes' roster did not indicate which area of the processing facility he was working in every day. Instead, Mr Jenssen would give him instructions at the beginning of every shift to identify the area of the processing facility where he was to undertake work. Though Mr Jenssen was Mr Hammond's supervisor, he did not provide specific directions to Mr Hammond in respect to the performance of his work, as most workers knew what work they were required to perform when they arrived at the site.
On 14 July 2022, after arriving at the site, Mr Jenssen got changed, signed in and went to see human resources to find out who would be at the site for the day. Mr Jenssen made the decision to assign Mr Gaynes to the role of scanning the pallet labels and cartons with the hand-held scanner gun at the start of the shift, because another worker who would often perform that task was not at work that day. Mr Jenssen considered that Mr Gaynes was experienced at scanning.
Mr Gaynes was scanning at the site when the battery on the hand-held scanner ran low.
At about the same time, Mr Hammond was using a Toyota forklift (the forklift) to move pallets for a changeover.
On the day of the incident, an orange plastic bollard with a yellow chain attached to its top was stored near to the personnel access door. This did not block the personnel access door.
On 14 July 2022, prior to 4:55pm, Mr Gaynes walked out of the chilled stack-down area through the rapid roller door to collect batteries for the hand-held scanner from the office in the load out area.
On 14 July 2022, prior to 4:55pm, Mr Hammond operated the forklift to pick up an empty stack of pallets within the chilled stack-down area. He then placed the empty stack of pallets on the ground underneath the curtain of the rapid roller door.
Mr Hammond then continued to operate the forklift in the chilled stack-down area outside of the range of the induction loop sensor.
At approximately 4:55:15pm, Mr Gaynes walked back into the chilled stack-down area through the doorway of the rapid roller door. As Mr Gaynes walked through the doorway, the forklift operated by Mr Hammond remained outside the range of the induction loop sensor, and outside the vision of the CCTV camera (apart from the blue halo lights).
Mr Gaynes was looking and gesturing in the direction of his right-hand side as he walked through the door, in the opposite direction to the position of the forklift.
At approximately 4:55:16pm, Mr Hammond was reversing the forklift and struck Mr Gaynes and ran over his left leg. Mr Gaynes sustained tibia and fibula fractures to his left leg.
At the time of the incident, Mr Jenssen, Mr Dhari and the other packers were in the work area. Mr Jenssen did not see the incident because he was around the other side of the chilled stack-down area.
Mr Gaynes was transported by ambulance to Wagga Wagga Base Hospital where he was admitted to the emergency department.
A left leg below-knee amputation operation was performed.
Following the operation, Mr Gaynes' left leg developed stump necrosis, and aboveknee amputation was performed on 18 July 2022.
On 27 July 2022, Mr Gaynes was transferred to Narrandera Hospital to continue his rehabilitation.
JBS had management and control of the forklift being operated by Mr Hammond at the time of the incident.
The forklift had a series of safety features including:
Horn.
Reverse flashing beacons.
Reverse beeper.
Side mirrors.
Blue halo lights, reaching two and a half metres around the back and sides of the forklift.
Seatbelt, which needed to be engaged for the forklift to move.
An access code was required to operate the forklift. Access codes were only given to workers that were licensed and verified as competent to operate the forklift.
Mr Hammond was a licensed forklift operator as at the date of the incident. He first obtained his forklift licence in around September 2009.
The forklift had been serviced on 4 July 2022.
The rapid roller door had been serviced at regular intervals prior to the incident, most recently on 27 June 2022.
Workers were provided with induction and other safety related training relevant to their role. In particular:
Mr Hammond completed PRC 13 Forklift driver training on 16 June 2022.
Mr Gaynes was deemed competent in CS10_V3 - Scanner operator on 17 May 2021.
Mr Gaynes completed PRC 05 Forklift awareness training on 12 July 2021.
The content of the PRC 05 Forklift awareness training and PRC 13 Forklift driver training included the following:
All people working in areas where forklifts operate must wear high visibility vests at all times.
Pedestrians must be aware of where forklifts are operating and not encroach in the forklift work area.
Forklifts MUST give way to pedestrians at all times, but pedestrians should never assume that the forklift operator can see you; always exercise caution.
Safety signs are in place as a reminder of hazards and contain instructions designed to stay safe.
Forklift driver MUST BEEP HORN when approaching a known blind spot to alert pedestrians they are in the area.
Pedestrians must be aware of the many blind spot areas on plant (around corners, opening doors into chillers or freezers).
You must always follow signage and look and listen for forklifts that may be approaching from a blind spot.
Toolbox talks were periodically held with workers. Toolbox talks held included the following:
(a) NO pedestrian access through the Forklift door. (b) ONLY enter or exit the room through the door via the designated walkway across the forklift alleyway. (c) Pedestrians MUST stay on the designated walkway at ALL times when in loadout and on the dock. (d) You cannot take a short cut across the dock forklift or scanning/pallet area to another part of the dock. (e) The scanner operator can walk across the area BUT only when performing scanning duties. (f) The forklift operator can walk across the area but ONLY for access to and from the forklift. (g) Failure to comply will result in disciplinary action.
(a) This toolbox is being held to re-enforce forklift safety in the plate freezer area & on the dock. (b) NO pedestrian access through the Forklift door. (c) ONLY enter or exit the room is through the door via the designated walkway across the forklift alleyway. (d) Pedestrians MUST stay on the designated walkway at ALL times when in loadout and on the dock. (e) You cannot take a short cut across the dock forklift or scanning/pallet area to another part of the dock. (f) The scanner operator can walk across the area BUT only when performing scanning duties. (g) The forklift operator can but walk across the area ONLY to access to and from the forklift. (h) Failure to comply will results in disciplinary action.
(a) Under no circumstances can any pedestrian or exit door be blocked in any way or by pallets or any equipment. (b) Not complying with these safety rules will result in disciplinary action.
(a) You must only use designated pathways on site. (b) At all times you are to remain on the designated walkways in any forklift area. (c) Do not take a short cut & walk across forklift only zone areas. (d) Do not enter through rapid doors / forklift entries to areas that have employee entry doors. (e) Not complying with these safety rules will result in disciplinary action.
On inspection of the forklift after the incident, SafeWork Inspector Howie observed that the left hand mirror was positioned so that when she was standing at the rear of the forklift she could not be observed as it was pointing toward the ground. Inspector Howie could be seen in the right hand mirror when standing at the rear of the forklift.
During the investigation conducted by SafeWork, Mr Gaynes stated he could not hear the reverse beeper of the forklift because there was a big fan above the forklift.
The forklift had a manufacturer's operator manual in the back pocket of the seat.
Prior to the incident, there were signs on the wall and metal frame leading into the chilled stack-down area from the load-out area including a:
“Forklifts operating in this area” sign on the wall;
“Safety first - sound your horn” sign on the wall;
“No Pedestrians - forklift access only - Exit through door only” sign on the left hand side of the metal frame (and an equivalent but ripped sign on the right-hand side of the metal frame).
Prior to the incident, there was also a sign in the chilled stack-down area on the wall to the right-hand side of the rapid roller door stating: “CAUTION SOUND HORN Pedestrian & Fork Truck / Vehicle TRAFFIC AREA”.
There was also a sign to the left-hand side of the control panel next to the rapid roller door which stated: “CAUTION PEDESTRIANS - AUTOMATIC HIGH SPEED DOOR - STAY CLEAR”.
Prior to the incident, JBS had the following documented systems in place in relation to the chilled stack-down area:
The JBS Procedural Statement for Cold Stores relevantly provided:
(a) the “blue light on the forklift is an exclusion zone”; (b) “[a]t no point should any operator working around the forklift be in between the blue light exclusion zone and the forklift”; (c) workers “must be vigilant of forklifts at all times when working in the cold stores area”; (d) workers must not “place anything in front of any doorway or emergency access evacuation paths”; (e) “Forklift operators must exercise proper operating procedures as per your licence attainment”; (f) “Listen for reversing beeps and horns at all times”; (g) “Always exercise extreme caution when on or around forklifts”; (h) “Always stick to designated walkways”; and (i) “Be cautious when walking around shared zones”. (j) “You must abide by safety signage at all times.”
The Procedural Statement for Cold Stores was issued to relevant workers prior to the incident, including Mr Gaynes on 24 February 2020, Mr Hammond on 14 June 2022 and Mr Jenssen on 13 November 2018.
(a) “High Visibility clothing must be worn so you are easily seen by forklift drivers”; (b) “You MUST only enter or exit the plate freezer palletising work area through the designated entry & personnel door”; (c) “Palletising operators are to remain in their designated work area between conveyor and pallets”; (d) “You must listen for horns & reversing beeps from the forklifts when entering, exiting & working in any forklift area”; (e) “You must always be mindful of the blue light that forklifts emit to alert you they are in close vicinity”; and (f) “NEVER enter or exit the plate freezer palletising work area via the forklift access door or the forklift passage”.
The Task Description Operating Electric Pallet Jack was issued to relevant workers prior to the incident, including Mr Gaynes on 16 March 2021 and Mr Jenssen on 11 March 2021.
(a) “Understanding our risk profile and seeking to eliminate or reduce our risk through implementing effective hazard and risk management processes”; (b) “Allocating adequate resources to plan for and maintain a safe, healthy and supportive working environment, including suitably qualified and competent persons to support and deliver JBS Australia's safety commitment”; (c) “Providing safe systems of work and maintaining equipment and machinery that is safe”; and (d) “Ensuring our people are trained to conduct their work safely through the provision of innovative and high quality training programs which meet the diverse needs of our businesses.”
The Riverina Beef Traffic Management Plan dated October 2016 provided internal traffic flow plans for the Site.
At the time of the incident, relevant workers including Mr Gaynes, Mr Hammond, Mr Jenssen and Mr Dhari understood that they were required to access the chilled stackdown area from the personnel access door and not the rapid roller door.
Part 3.1 of the Work Health and Safety Regulation 2017 (NSW) (the Regulation) requires a duty holder to manage risks to health and safety by:
Identifying reasonably foreseeable hazards that could give rise to risks to health and safety (cl 34);
Eliminating risks to health and safety so far as is reasonably practicable and, if it is not reasonably practicable to eliminate risks to health and safety, minimise those risks so far as is reasonably practicable (cl 35);
Ensuring a control measure that is implemented to eliminate or minimise risks to health and safety is, and is maintained so that it remains, effective, including by ensuring that the control measure is and remains:
(a) Fit for purpose, and (b) Suitable for the nature and duration of the work, and (c) Installed, set up and used correctly (cl 37); and
Reviewing and revising, as necessary, control measures implemented so as to maintain, so far as is reasonably practicable, a work environment that is without risks to health or safety (cl 38).
Clause 39 of the Regulation requires a duty holder to provide suitable and adequate information, training, and instruction to a worker, having regard to the work carried out by the worker, the nature of the risks associated with the work, and the control measures implemented. The duty holder must ensure that the information, training, and instruction is provided in a way that is readily understandable to any worker to whom it is provided.
Clause 214(d) of the Regulation requires a person with management or control of powered mobile plant at a workplace to manage, in accordance with Part 3.1, risks to health and safety associated with the plant colliding with any person or thing.
Clause 215(4) of the Regulation specifically requires a person with management or control of powered mobile plant at a workplace to ensure that the plant does not collide with pedestrians or other powered mobile plant.
Prior to the incident, the following industry guidance material had been published and was available to JBS:
Safe Work Australia's General Guide for Workplace Traffic Management (SWA Guide) was published in July 2014 and relevantly provides:
“Information, training, instruction and supervision
Before mobile plant is used in your workplace you must provide anyone who will use it with the information, training, instruction or supervision necessary to protect them and others from the risks associated with traffic in a workplace.
You should provide supervision to ensure safety procedures are being followed, particularly if you are relying on administrative control measures to minimise risks.”
“Powered mobile plant
The person with management or control of powered mobile plant must manage risks to health and safety associated with the following:
- the plant colliding with any person or thing”
“1.4. Information, training, instruction and supervision
The WHS Act requires that a PCBU ensure, so far as reasonably practicable, the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking.
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.
Supervisors should take action to correct unsafe work practices associated with plant as soon as possible. Otherwise workers may think unsafe work practices are acceptable.”
“1.2. Information, training, instruction and supervision
A PCBU must provide any information, training, instruction or supervision necessary to protect all persons from risks to their health and safety, so far as is reasonably practicable.
A PCBU should provide supervision to ensure safety procedures are being followed, particularly if they are relying on administrative controls to minimise risks.
…
1.5. Loadshifting equipment
Loadshifting equipment can include powered mobile plant like forklifts, ride-on pallet movers, walkie stackers and manual equipment (e.g. pallet jacks and trolleys).
Where forklifts are used, the best way to minimise the risk of forklift-related injuries is to separate pedestrians and forklifts.
If this is not possible consider:
- implementing and enforcing pedestrian and forklift exclusion zones.”
“Users and supervisors shall ensure that the following rules are observed
(b) All personnel in the vicinity of operating trucks shall be made to be aware of and observe safe working procedures including minimum pedestrian safety requirements and separation distances.”
“Eight simple safety tips:
…
6. Supervise your workers and ensure you give them feedback on how safe they are working
7. Value and reward safe behaviour”
“Businesses must...
- ensure workers and all other people on site adhere to the traffic management plan and site safety rules”
“ACTION REQUIRED
PCBUs must also provide workers and others with adequate information, training, instruction or supervision to protect persons from plant-related risks.
SPECIFIC CONTROL MEASURES
Part 3.1 of the WHS Regulation specifies the manner in which risks to health and safety in the workplace must be managed. This applies to managing the risk of mobile plant, which can be done using the following risk management process.
- Maintain and review control measures. Control measures need to remain effective, particularly if the workplace is changing. Systems should be in place to:
…
- Ensure workers are implementing control measures correctly”
On 18 July 2022, Inspector Howie issued Improvement Notice 7-422145 to JBS requiring it to undertake a review of the activity being undertaken at the time of the incident and implement and train workers in the procedure for that activity.
On 18 July 2022, Inspector Howie also issued Improvement Notice 7-422149 to JBS requiring it to eliminate or, where not practicable, minimise the risk, so far as is reasonably practicable, associated with workers/pedestrians being struck by a reversing forklift.
On 19 August 2022, at about 11.40am, Inspector Howie visited the Site to enquire if JBS had complied with the improvement notices.
On 19 August 2022, at about 5.00pm, JBS emailed Inspector Howie to confirm the steps taken by JBS to comply with the improvement notices. The email confirmed that the following steps were taken (or scheduled to be undertaken) in response to the improvement notices:
Improvement Notice 7-422145
(a) The rapid roller door was placed in automatic mode on 18 July 2022. (b) Workers in the chilled stack-down area were given instructions on 18 and 19 July 2022 which re-enforced the procedures in the area (including the requirement that rapid doors remain in automatic mode and that pedestrians used designated walkways and doors), and that serious disciplinary action would be taken if safety procedures are not followed. The initial instructions were conveyed via toolbox talks conducted by the Plant Manager and Safety Advisor and follow-up toolbox talks conducted by supervisors and HSRs. (c) The instructions on the procedures for workers were reinforced through the installation of 60 cm x 40 cm custom signs to the rapid door area - scheduled to be completed on 20 August 2022. (d) Additional line marking of pedestrian exclusion zones at the rapid roller door to provide additional warning to workers - scheduled to be completed on 20 August 2022. This was completed using red painted diagonal lines.
(a) JBS engaged Liftek Australia Pty Ltd to attend the site on 1 August 2022 to undertake a review of the reversing beepers on all the forklifts at the site. (b) The review found that all forklift beepers were within specification and were functioning correctly.
JBS operates in conjunction with a range of other corporate entities which is referred to as “the JBS Group”.
The JBS Group is a global meat and food processing business with operations in Australia. In Australia, the JBS Group exports meat products to over 50 countries and maintains significant market share in domestic beef, lamb and pork markets in Australia.
The JBS Group employs about 15,620 employees in Australia including about 3,939 employees in New South Wales. JBS employs about 9,555 employees in Australia including 1,362 employees in NSW.
Mr Lynes reports to the Chief Operating Officer (COO) of the Northern Division, Mr Brendan Tatt. Mr Tatt reports to the CEO of the JBS Group in Australia, Mr Brent Eastwood.
Mr Lynes set out a detailed statement of his current responsibilities at JBS.
JBS currently employs about 491 employees at the Riverina Plant and about 77 employees at the Riverina Feedlot.
The Riverina Plant operates five days per week, from Monday to Friday, from 5.30am to 11.30pm.
The operations of the Riverina Plant include slaughtering, boning, packing, palletisation and rendering as well as maintenance.
Mr Lynes set out further actions taken by JBS at the Riverina Plant since the Incident that were not in the ASOF. These included:
Painting additional yellow and white lines on the ground to mark the pathway to the pedestrian access door to the chilled stack-down area. These painted lines lead to a pedestrian only walkway. The walkway is painted in green and is also guarded by yellow painted barricades. At the time of the Incident, racking was installed alongside this wall, which was removed to allow installation of the green walkway and yellow painted barricade.
New login codes were issued to licensed forklift drivers to operate to the forklifts, to give each driver an individual code.
Internal traffic management lines at the site were recently re-painted. External traffic management lines have been scheduled for re-painting in December 2025.
Additional toolbox talks were provided to workers in the loadout and chilled stack-down areas to reinforce requirements concerning use of the rapid roller door.
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].
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].
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.”
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].
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.
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.
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.”
“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.”
“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.”
My findings about the defendant’s level of culpability are based upon the following:
The risk was known to and foreseen by JBS. While the JBS safety system was designed to minimise such risk, the system was not enforced and the automatic door was switched to manual.
There was a significant likelihood of the risk occurring, once the JBS safety system was ignored.
The potential consequences of the risk were death or serious injury.
There were steps available to eliminate or minimise the risk. Those steps were taken immediately after the incident.
There was no burden or inconvenience of implementing those steps.
The harm caused to Mr Gaynes was most serious, resulting in an above-knee amputation.
The maximum penalty for the offence is a fine of $1,860,843, which reflects the legislature’s view of the seriousness of the offence.
I find that the level of culpability of JBS is in the mid range.
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].
The penalty must reflect the need for specific deterrence. JBS is still conducting a very extensive business. Its operations involve meat and food processing and the continuing engagement of workers. They work in an industry which is dangerous, if businesses do not discharge their safety duty.
The injury, emotional harm, loss or damage caused by the offence was substantial: s 21A(2)(g) CSP Act.
Counsel for SafeWork conceded that while JBS had been convicted in 2020 and in 2023 in this court of offences under s 19(1) and s 132 of the WHS Act, these convictions did not rise to the level of an aggravating feature under s 21A(2)(d) of the CSP Act. The earlier conviction related to a fire incident; SafeWork NSW v JBS Australia Pty Ltd [2020] NSWDC 678. The later conviction referred to the failure to carry out a risk assessment on a stack of hay bales: SafeWork NSW v JBS Australia Pty Ltd (No 4) [2023] NSWDC 473.
Counsel for SafeWork submitted that while the prior convictions did not constitute an aggravating factor under the CSP Act, the existence of those convictions meant that JBS was not entitled to leniency as if it were a first offender. This proposition was accepted by counsel for JBS.
Prior convictions are relevant to decide where, within the boundaries set by the objective circumstances, a sentence should lie; R v McNaughton (2006) 66 NSWLR 566 at [26]; SafeWork NSW v Deicorp Pty Ltd [2022] NSWDC 194 at [104] per Strathdee DCJ.
Counsel for SafeWork did not dispute the following submissions made by counsel for JBS.
JBS is otherwise of good character: s 21A(3)(f) CSP Act. The steps which it took after the incident demonstrate this. It has been a good corporate citizen. JBS Group acquired the business of Australian Meat Holdings in 2007 so it has been in business for 18 years.
JBS has good prospects of rehabilitation: s 21A(3)(h) CSP Act. It has taken positive steps to guard against the risk of an incident such as this ever happening again. It has brought its documentation and its procedures into line with those which, on all the evidence, should have been in place before this incident occurred.
JBS has shown remorse for the offence: s 21A(3)(i) CSP. It has provided evidence that it has accepted responsibility for its actions and has acknowledged that the injury to Mr Gaynes was caused by its actions.
JBS 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 JBS a 25% discount for an early plea.
JBS gave assistance to law enforcement authorities: s 21A(3)(m) CSP Act. It cooperated at all times with the prosecutor and provided all documents requested in a prompt fashion.
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.
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.”
The defendant was convicted at the sentence hearing on 15 October 2025.
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).
By s 28(1) a primary victim may prepare a statement that contains particulars of the following suffered as a direct result of the offence:
Any personal harm.
Any emotional suffering or distress.
Any harm to relationships with other persons.
Any economic loss or harm that arises from any matter referred to in (1) – (3) above.
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).
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).
The prosecutor tendered the Victim Impact Statement of Mr Gaynes, dated 22 September 2025 (PX 2).
Mr Gaynes is 57 years old. He has acquired a significant amount of experience performing factory work, landscaping, hospitality and aged/disability care throughout his 38 year working career.
Immediately after the incident he caught a glimpse of his “badly mangled leg”. Mr Gaynes was thankful for the assistance provided by his supervisor (Mr Jenssen) and the First Aid Officer (Ms Sue Blackburn). He credits them with saving his life. Mr Gaynes has no recollection of the paramedics who attended the scene because he was in a state of shock.
Mr Gaynes described the extensive rehabilitation he has undertaken since the incident. He can mobilise in a wheelchair and with his prosthetic leg. He lives alone and can do most household tasks, though some take longer than before the incident.
Mr Gaynes is a resilient, hardworking and determined man. He is concerned that he may difficulties securing employment in the future if he stopped working with JBS, where he has returned to work for 20 hours per week printing labels for meat products. As he is renting his property, Mr Gaynes is also concerned about the provision of suitable and affordable accommodation in the future.
Mr Gaynes is concerned about his personal safety because of his physical vulnerability. He becomes upset more easily since the incident and reported reduced patience and tolerance with others. He also has depressing and sad thoughts about his disability. Mr Gaynes tries to be grateful for his circumstances and focus on what he can do rather than what he cannot.
My orders are:
JBS Australia Pty Ltd was convicted on 15 October 2025.
The appropriate fine is $440,000 but that will be reduced by 25% to reflect the early plea of guilty.
Order JBS Australia Pty Ltd to pay a fine of $330,000.
Order pursuant to Section 122(2) of the Fines Act 1996 (NSW) that 50% of the fine is to be paid to the prosecutor.
Order JBS Australia Pty Ltd to pay the prosecutor’s costs agreed in the amount $44,242.31.
**********
par 107 amended 'did rise' to 'did not rise'.
SafeWork NSW
JBS Australia Pty Ltd [2025] NSWDC 433
(1988) 166 CLR 51
(2016) 93 NSWLR 338
(2000) 49 NSWLR 610
(2011) 244 CLR 120
(2006) 66 NSWLR 566
(1988) 164 CLR 465
Once the rapid roller door was open, provided that the forklift was no longer activating the induction loop sensors and there was nothing directly underneath the curtain of the rapid roller door, the rapid roller door would then close within a few seconds.
To the left-hand side of the control panel, there was a sign with instructions on the manual operation of the door, under the heading “EMERGENCY OPERATION”. Above these instructions the sign said: “CAUTION PEDESTRIANS - AUTOMATIC HIGH SPEED DOOR-STAY CLEAR”.
In the load out area, there was also a button to the right-hand side of the rapid roller door which could be pressed to open the rapid roller door (for example, in an emergency).
On the day of the incident, the rapid roller door was in manual and not automatic mode, and was left open.
On 25 June 2020 a toolbox talk was held with workers (including Mr Gaynes). Points covered included: