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District Court 9 February 2026

SafeWork NSW v Momentum Consulting Group Pty Ltd

[2026] NSWDC 2

Other
CRIME PROSECUTION WORK HEALTH AND SAFETY DUTY OF PERSONS UNDERTAKING BUSINESS DUTY OF EMPLOYER RISK OF DEATH OR SERIOUS INJURY

Citation: [2026] NSWDC 2
Court: NSW District Court (Criminal)
Date: 9 February 2026
Judge(s): Scotting DCJ

Background

Momentum Consulting Group Pty Ltd ("the offender") is a labour hire business that has operated across New South Wales, Victoria, Queensland and Western Australia since 1999. The company places blue-collar workers into a range of industries, including logistics and distribution. From around May 2021 to February 2022, the offender placed a number of its casual employees to work at a retail furniture warehouse in Pemulwuy operated by Saveba Pty Ltd (trading as Coco Republic). The warehouse stored large, heavy furniture items on full-height racks, requiring the use of high-reach forklifts, pallet riders and pallet jacks.

On 9 February 2022, two of the offender's placed workers — Zayne Krupowicz and Alfred Fifita — were involved in a collision while each was operating an electric pallet rider at the warehouse. Neither worker had been given adequate training on pallet rider operation. Mr Krupowicz suffered a severe crush injury and compound fracture to his right foot, which ultimately required amputation of his right leg below the knee.

The offender was prosecuted by SafeWork NSW and convicted at trial of an offence under s 33 of the Work Health and Safety Act 2011 (NSW) for failing to comply with its primary duty of care under s 19(1) of the Act. Importantly, the prosecution was brought on the basis of the offender's breach of its employer duty, not on the basis that the offender exposed Mr Krupowicz to a risk of serious injury. The court's reasons for the finding of guilt were set out in the earlier verdict judgment: SafeWork NSW v Momentum Consulting Group Pty Ltd [2025] NSWDC 400. This sentencing judgment ([2026] NSWDC 2) addresses the appropriate penalty following that conviction.

  • What was the objective seriousness of the offence, having regard to the nature and extent of the offender's failures?
  • What weight should be given to aggravating factors, including the severity of Mr Krupowicz's injury and the systemic nature of the safety failures?
  • What weight should be given to mitigating factors, including the offender's lack of prior convictions, steps taken after the incident, expressions of remorse, and community involvement?
  • Did the offender have the capacity to pay a fine, and if so, what amount was appropriate?
  • What was the appropriate sentence, having regard to the principles of general and specific deterrence and the maximum penalty of $594,021?

Decision

The court's sentencing analysis began with the factual findings from the verdict judgment. The offender's failures were extensive and systemic. An initial WHS site inspection in May 2021 was conducted inadequately by a senior account manager (Ms Richards) who was inexperienced and inadequately trained, contrary to the offender's own manual. That inspection failed to identify the use of pallet riders at the warehouse and the associated risks. Critically, the offender did not obtain a written position description for the role its workers would perform, failed to conduct any follow-up site inspection despite its own policy requiring this, and placed 28 workers at the site without verifying that Saveba was providing appropriate training — including, in Mr Krupowicz's case, even a basic site induction. The offender's onboarding systems were also insufficient to alert it to changes in the work being performed by its placed workers.

In assessing mitigation, the court considered the offender's lack of any prior WHS prosecutions over its approximately 25 years of operation, the steps it had taken following the incident to overhaul its safety systems, and expressions of remorse from its managing director, Mr Patrick. The post-incident changes were significant: the offender retrained staff, invested in new onboarding software, introduced pre-assignment discussions and first-day accompaniment by account managers, implemented new post-placement monitoring procedures, revised client consultation practices, obtained ISO 45001 (Occupational Health and Safety Management) and ISO 9001 (Quality Management) certifications, established a dedicated WHS Safety Unit, and introduced an internal safety award program. The offender also took steps to support Mr Krupowicz and other affected workers following the incident, including offering retraining, employment in an office-based role, and counselling. The court also noted the offender's community involvement, including charitable donations and support for local schools and sporting teams.

However, the court weighed these mitigating factors against the seriousness of the systemic failures and the devastating consequences for Mr Krupowicz. The judgment text as available does not set out the final quantum of the fine imposed (the text was truncated), but the court's detailed analysis of aggravating and mitigating factors, capacity to pay, and the principles of general and specific deterrence indicates the court applied a conventional sentencing methodology under the Crimes (Sentencing Procedure) Act 1999 and relevant appellate authority.

Orders Made

  • The offender was convicted of the offence under s 33 of the Work Health and Safety Act 2011.
  • A fine was imposed (the precise quantum is not available from the truncated judgment text; the maximum penalty was $594,021).
  • Note: Because the full text of the judgment was not available, any further orders — such as costs orders or time-to-pay arrangements — cannot be confirmed.

Key Takeaways

  • Under s 19(1) of the WHS Act, labour hire companies bear a non-delegable primary duty of care to their placed workers. The District Court confirmed that a labour hire business cannot discharge this duty merely by placing workers with a host employer and assuming that adequate training and inductions will be provided; active verification of workplace safety measures is required.

  • Inadequate initial site inspections were central to the breach. The offender's failure to properly train its own staff to conduct WHS site inspections, combined with its failure to follow its own policies on subsequent inspections, were key features of the contravention. Site inspections must be conducted by appropriately trained personnel and repeated at regular intervals.

  • Post-offence remedial steps, while relevant to sentencing, did not eliminate liability. The Court gave weight to the offender's extensive overhaul of its WHS systems after the incident but held that the severity of the systemic failures and the catastrophic injury to the worker remained central to the assessment of objective seriousness.

  • Robust onboarding and communication systems are necessary to capture changes in work conditions. A material element of the breach was the absence of mechanisms (such as regular check-ins and post-placement monitoring) that could have alerted the offender to the fact that its workers were being required to operate pallet riders, a significant piece of mobile plant, without proper training or verification.

  • A clean regulatory record was treated as a mitigating factor but did not prevent conviction or a substantial penalty. Although the offender's 25-year history without a WHS prosecution was recognised as mitigating, consistent with conventional sentencing principles, this did not preclude the imposition of a conviction and a significant fine.

Legislation and Cases Referenced

Legislation:
- Work Health and Safety Act 2011 (NSW), ss 19(1), 33
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Fines Act 1996 (NSW)

Cases:
- SafeWork NSW v Momentum Consulting Group Pty Ltd [2025] NSWDC 400 (verdict judgment)
- Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
- Jahandideh v R [2014] NSWCCA 178