Citation: SafeWork NSW v ANJ Container Services & Bond Stores Pty Ltd (No. 2) [2026] NSWDC 307
Court: District Court of New South Wales
Date: 25 August 2026
Judge(s): Russell SC DCJ
Background
ANJ Container Services & Bond Stores Pty Ltd operated a customs-controlled quarantine facility and container depot in New South Wales. The company processed around 200 truck movements per day on its site, with heavy plant including reach stackers (large industrial vehicles used to lift and move shipping containers) operating alongside pedestrian traffic.
On 21 April 2022, a truck driver named Mr Darren Spinks arrived at the ANJ site to deliver a load. After parking his vehicle, Mr Spinks walked away from it along a designated walkway. A reach stacker operated by an ANJ employee reversed into him. Mr Spinks died from his injuries.
ANJ was prosecuted by SafeWork NSW under the Work Health and Safety Act 2011 (NSW). Following a judge-alone trial on a plea of not guilty, ANJ was found guilty in April 2026 (see the principal judgment, [2026] NSWDC 89) of failing to comply with its work health and safety duty under section 19 of the WHS Act, thereby exposing Mr Spinks to a risk of death or serious injury, contrary to section 32. This decision deals with sentencing and costs.
Legal Issues
- What fine should be imposed on ANJ, having regard to the objective seriousness of the offence, mitigating and aggravating factors, general and specific deterrence, and ANJ's capacity to pay?
- What weight should be given to ANJ's prior safety record, post-incident remediation steps, and the absence of a guilty plea?
- How should the costs of the sentence hearing be allocated, including the consequences of SafeWork NSW's failure to comply with a subpoena to produce documents?
Decision
Issue 1: Objective seriousness of the offence
The court assessed the offence as being of moderate to high objective seriousness. The principal judgment had established that ANJ failed to conduct an adequate risk assessment and failed to develop, implement, and enforce a proper traffic management plan for the interaction between pedestrians and moving plant on its site. Critically, while ANJ employees were told of safety customs such as giving way to moving plant, visitors to the site, including the 200-plus truck drivers attending daily, were never given that information.
Issue 2: Mitigating factors
The court took into account a number of mitigating matters. ANJ was a family-owned business with a generally positive prior safety record, though that record was qualified by a 2017 forklift incident involving a person struck at the same site. ANJ cooperated with SafeWork's investigation and promptly implemented all improvement notices issued after Mr Spinks' death. Post-incident measures included redesigning the pedestrian walkway, installing new reverse cameras and sensors on reach stackers, speed-limiting reach stackers to 10 km/h, upgrading lighting, implementing a formal visitor induction, and extending gatehouse staffing to a 24-hour basis. The court also accepted that genuine remorse was expressed by a director of ANJ, who conveyed condolences to Mr Spinks' family during the trial.
Issue 3: Aggravating factors and the absence of a plea
ANJ was convicted after a contested trial, meaning no discount for a guilty plea applied. The court also noted that the 2017 forklift incident on the same site had placed ANJ on notice of the risk of pedestrian and plant interaction, which weighed against the company. The maximum penalty for the offence was $1,782,579, and the court imposed a fine of $800,000. Under section 122(2) of the Fines Act 1996 (NSW), 50% of the fine was directed to be paid to the prosecutor.
Issue 4: Costs
SafeWork NSW had failed to comply with a subpoena to produce documents filed in August 2025, causing two adjournments and additional costs for ANJ. The court ordered SafeWork to pay ANJ's costs associated with that non-compliance, and ordered that SafeWork was not entitled to its own costs in relation to that issue. For the balance of the sentence and costs hearing, ANJ was ordered to pay 80% of SafeWork's costs, reflecting that ANJ succeeded on only one of three costs arguments raised.
Orders Made
- ANJ Container Services & Bond Stores Pty Ltd convicted and ordered to pay a fine of $800,000.
- 50% of the fine directed to be paid to the prosecutor (SafeWork NSW), pursuant to section 122(2) of the Fines Act 1996 (NSW).
- SafeWork NSW ordered to pay ANJ's costs associated with the non-compliance with the subpoena to produce (filed 13 August 2025), including costs of two adjournments (3 and 9 December 2025), related court argument, review of explanatory affidavits, and correspondence between the parties.
- SafeWork NSW not entitled to any costs in relation to the non-compliance issue.
- ANJ ordered to pay 80% of SafeWork's costs of and incidental to the sentence and costs hearing.
- Subject to the above costs orders, ANJ ordered to pay the prosecutor's costs generally.
Key Takeaways
- A conviction under section 32 of the Work Health and Safety Act 2011 (NSW) for a category 1 or category 2 offence does not require a guilty plea to proceed to sentence, but the absence of a plea means no sentencing discount applies, which directly affects the quantum of any fine.
- The District Court treated the failure to provide safety information to visitors, including regular truck drivers, as a significant aggravating feature, even where the same information was communicated to employees on site.
- Prior safety incidents on the same site can diminish the mitigating weight of an otherwise positive safety record, on the basis that earlier incidents put the operator on notice of similar risks.
- Prompt and extensive post-incident remediation, genuine remorse, and a positive community and safety profile were accepted as mitigating factors, but did not override the seriousness of a fatality arising from systemic failures in traffic management.
- Where a prosecutor fails to comply with a subpoena to produce and causes adjournments and additional costs, the court may exercise its discretion to order the prosecutor to bear the defendant's costs of that specific issue, even if the defendant is otherwise the costs-paying party.
Legislation and Cases Referenced
Legislation
- 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
Cases
- 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
- SafeWork NSW v ANJ Container Services & Bond Stores Pty Ltd [2026] NSWDC 89
- SafeWork NSW v Mondiale VGL Pty Ltd [2022] NSWDC 275
- Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266
- Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465