Citation: McColm (Department of Regional NSW) v Tucker (No 2) [2025] NSWDC 472
Court: District Court of New South Wales
Date: 7 August 2025
Judge: Scotting DCJ
Background
The offender was employed as workshop manager at a quarry near West Wyalong, New South Wales. On 24 May 2021, he drove a colleague, Matthew Richens, to a construction site within the quarry. After briefly leaving the vehicle to assist with an unrelated task, the offender returned and performed a U-turn without activating the vehicle's amber flashing light or making a radio announcement of his movements. The front of the vehicle struck Mr Richens, who was crouched on the ground nearby, and drove over him. Mr Richens died at the scene.
The offender was tried and convicted of an offence under section 32 of the Work Health and Safety Act 2011, which concerns a person undertaking a business failing to comply with a health and safety duty in circumstances that expose an individual to a risk of death or serious injury. The verdict judgment is reported as McColm (Department of Regional NSW) v Tucker [2025] NSWDC 199. The present judgment deals solely with sentencing.
The maximum penalty available for the offence is a fine of $176,460 (1,730 penalty units). The prosecution was brought by the Department of Regional NSW, and the offender was an individual rather than a corporation.
Legal Issues
- What is the appropriate fine given the objective seriousness of the offence?
- What weight should be given to aggravating and mitigating factors, including the offender's capacity to pay?
- Whether the offender's capacity to pay warranted a reduction from the base fine, and by how much
- How costs should be allocated, including where the prosecutor's conduct of the case may have overcomplicated proceedings and caused wasted costs for the offender
Decision
Scotting DCJ assessed the offence as involving a foreseeable and serious risk of death in an active construction and quarry environment. The offender was not merely a bystander: he was an author of the relevant Safe Work Method Statement, had attended safety meetings addressing the specific hazard, had been trained on the applicable procedures, and was directly responsible for supervising Mr Richens. Despite all of this, he failed to activate the vehicle's amber light, failed to use the radio, and failed to check that Mr Richens had moved to a safe position before driving off.
The court identified relevant aggravating factors, including that the offender's conduct caused a worker's death and that he held supervisory responsibility. Mitigating factors included the absence of prior convictions, genuine remorse, cooperation with investigators, and good prospects of rehabilitation. The court also considered the Victim Impact Statement prepared by the deceased's wife, noting the profound and enduring harm to the Richens family as evidence of harm to the broader community.
Before reduction, the court assessed the appropriate fine at $20,000. Given the offender's limited financial capacity to pay, the court reduced this to $5,000. Pursuant to section 122(2) of the Fines Act 1996, 50 percent of that fine is directed to the prosecutor.
On costs, the court deferred making final orders. Scotting DCJ observed that the prosecution had retained an expert whose evidence was ultimately not relied upon, and which caused the offender to incur wasted costs in retaining his own expert in response. More broadly, the court noted the case had been prepared in conjunction with proceedings against the quarry operator, which may have overcomplicated what was ultimately a straightforward case against the individual offender and contributed to delays and inflated costs on both sides. The prosecutor was directed to provide submissions on whether its own costs order should be limited by reference to its conduct of the preparation phase.
Orders Made
- The offender is convicted of the offence under section 32 of the Work Health and Safety Act 2011
- A fine of $5,000 is imposed (reduced from a base fine of $20,000 to reflect limited capacity to pay)
- Pursuant to section 122(2) of the Fines Act 1996, 50% of the fine is to be paid to the prosecutor
- Costs orders deferred pending further written submissions from the prosecutor (limited to five pages, due by 5pm on 22 August 2025)
- Final costs orders to be determined on the papers
Key Takeaways
- An individual supervisor convicted under section 32 of the Work Health and Safety Act 2011 may be fined well below the statutory maximum where mitigating factors, including limited financial capacity, genuine remorse, no prior record, and cooperation with investigators, are established.
- Authorship of a Safe Work Method Statement is capable of being a significant aggravating consideration: the court treated the offender's direct knowledge of the documented hazard as reinforcing the seriousness of his failure to follow the very controls he had helped design.
- Capacity to pay is a distinct and meaningful factor in individual sentencing under the Act: here it justified a reduction from $20,000 to $5,000, a reduction of 75 percent from the assessed base fine.
- A Victim Impact Statement is admissible and relevant in WHS sentencing proceedings; under section 30E of the Crimes (Sentencing Procedure) Act 1999, the harm caused to a deceased worker's family constitutes evidence of harm to the community.
- Where a prosecution was prepared in tandem with proceedings against a related corporate entity and that preparation may have overcomplicated an otherwise straightforward individual case, the District Court indicated it may limit a prosecutor's costs entitlement accordingly.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), s 32
- Work Health and Safety Regulation 2017 (NSW), cl 291
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 30E
- Fines Act 1996 (NSW), s 122(2)
Cases
- McColm (Department of Regional NSW) v Tucker [2025] NSWDC 199 (verdict judgment)
- Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
- Jahandideh v R [2014] NSWCCA 178
- R v Youkhana [2004] NSWCCA 412