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District Court 27 November 2025

SafeWork NSW v Matthew McCourt

[2025] NSWDC 491

Other
CRIMINAL LAW PROSECUTION WORK HEALTH AND SAFETY DUTY OF PERSONS UNDERTAKING BUSINESS RISK OF DEATH OR SERIOUS INJURY MAXIMUM PENALTY FINES ACT 1996

Citation: SafeWork NSW v Matthew McCourt [2025] NSWDC 491
Court: District Court of New South Wales
Date: 27 November 2025
Judge: Strathdee DCJ

Background

The defendant was the sole director and secretary of Always Energy Pty Ltd, a Port Macquarie business that installed, supplied and maintained solar panel systems. On 1 June 2022, a 22-year-old fourth-year apprentice electrician attended a residential construction site at South West Rocks to assist with a solar installation. The apprentice did not hold a Working at Heights Certificate.

Upon arrival, the apprentice accessed the roof to take preliminary measurements after a ground-level inspection proved insufficient. The roof was slightly dewy and, while standing near the roof edge and standing up to wave at the defendant who had just arrived on site, the apprentice's feet slipped from under him. He slid off the roof and fell approximately three metres to concrete below.

The apprentice sustained a right wrist fracture, a left olecranon (elbow) fracture, and dental injuries, and underwent surgery before being discharged from hospital several days later. SafeWork NSW prosecuted the defendant as the person conducting the business or undertaking (PCBU), and he pleaded guilty to one charge under s 32 of the Work Health and Safety Act 2011 (NSW), which concerns a failure to comply with a health and safety duty that exposed an individual to a risk of death or serious injury.

  • What was the appropriate penalty for a s 32 WHS Act offence by an individual PCBU, having regard to the objective seriousness of the offending and applicable sentencing principles?
  • What weight should be given to the guilty plea discount?
  • Whether the court should exercise its discretion under s 6 of the Fines Act 1996 (NSW) to reduce the fine on account of the defendant's limited financial capacity to pay.
  • How should the defendant's obligation to pay the prosecutor's agreed costs be factored into the overall penalty?

Decision

The court assessed the objective seriousness of the offending against the sentencing principles applicable to WHS Act matters. The defendant was responsible for the day-to-day management of Always Energy, including on-site safety. The Safe Work Method Statement (SWMS) that workers signed on the day was generic and did not address site-specific hazards. Adequate pre-installation documents, such as roof plans or aerial photographs, could have allowed workers to plan the job from the ground. There were insufficient safeguards to ensure appropriate fall protection was in place before the apprentice accessed the roof.

The court fixed the base appropriate fine at $180,000 and then applied a 25% reduction for the guilty plea, reducing the figure to $135,000. That figure reflects standard sentencing considerations, including general deterrence, which the court treated as significant given the frequency of workplace falls.

The court then turned to the defendant's capacity to pay. The defendant gave evidence and tendered financial material, including documentation suggesting that the now-liquidated company would yield no assets for creditors. Strathdee DCJ accepted the defendant's evidence as honest and was satisfied there was sufficient material to exercise the court's discretion under s 6 of the Fines Act 1996 to afford some leniency. A further 25% reduction was applied to the post-plea figure.

On costs, the court noted that costs orders in this context are compensatory rather than punitive, and that the prosecutor's success made a costs order the ordinary outcome. The court took into account both the prosecutor's costs and the defendant's own legal costs when calibrating the monetary penalty, as it was entitled to do.

Orders Made

  • The defendant is convicted.
  • The base fine of $180,000 is reduced by 25% for the guilty plea, resulting in $135,000.
  • A further 25% reduction is applied under s 6 of the Fines Act 1996 for limited capacity to pay.
  • The defendant is ordered to pay a fine of $101,250.
  • Pursuant to s 122(2) of the Fines Act 1996, 50% of the fine ($50,625) is to be paid to the prosecutor.
  • The defendant is to pay the prosecutor's costs in the agreed sum of $16,500.

Key Takeaways

  • A sole director who exercised day-to-day control over a business, including setting safety tasks, fell within the class of individual PCBUs subject to prosecution under s 32 of the WHS Act for failing to eliminate or minimise the risk of a worker falling from height.
  • Generic SWMS documentation that does not address site-specific hazards was found to be an inadequate discharge of the duty to provide safe systems of work, particularly where pre-installation planning could have reduced the need for workers to access a potentially slippery roof at all.
  • Under s 6 of the Fines Act 1996, a court retains discretion to reduce a fine where a defendant demonstrates genuine limited financial capacity, provided sufficient material is placed before the court. Here, honest evidence from the defendant and documentary support from the liquidated company's affairs were accepted as sufficient.
  • The District Court confirmed that a defendant's liability to pay the prosecutor's costs, and the burden of their own legal costs, are matters a sentencing court may properly take into account when fixing a monetary penalty, especially where financial capacity is limited.
  • Costs orders against a convicted defendant in WHS prosecutions remain the ordinary outcome following a successful prosecution, reflecting the compensatory (not punitive) rationale confirmed in Latoudis v Casey.

Legislation and Cases Referenced

Legislation:
- Work Health and Safety Act 2011 (NSW), ss 31, 32
- Fines Act 1996 (NSW), ss 6, 122
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22
- Criminal Procedure Act 1986 (NSW), s 257B

Cases:
- Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534
- Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338; [2016] NSWCCA 37
- Nash v Silver City Drilling (NSW) Pty Ltd; Attorney General for New South Wales v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96
- Environmental Protection Authority v Barnes [2006] NSWCCA 246
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610; [2000] NSWIRComm 71
- Morrison v Powercoal Pty Ltd (No 3) (2005) 147 IR 117; [2005] NSWIRComm 61
- McColl v John Watson Building Services Pty Ltd (2004) 137 IR 310; [2004] NSWIRComm 353
- Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464
- Ferguson v Nelmac Pty Ltd (1999) 92 IR 188
- Inspector Fraser v Karabelas (No 2) [2011] NSWIRComm 153
- Inspector Beacham v J & L Marble Pty Ltd [2009] NSWIRComm 100
- Orbit Drilling Pty Ltd v The Queen (2012) 35 VR 399; [2012] VSCA 82
- Jahandideh v R [2014] NSWCCA 178
- R v MA (2004) 145 A Crim R 434; [2004] NSWCCA 92
- R v Miria [2009] NSWCCA 68
- R v Cage [2006] NSWCCA 304
- Haynes v CI & D Manufacturing Pty Limited (No 2); Callaghan v CI & D Industries Pty Limited (No 2) (1995) 60 IR 455
- Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384