McColm (Department of Regional NSW) v Tucker (No 2)

Catchwords: CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury – death of worker
SENTENCING - objective seriousness - deterrence - aggravating factors - mitigating factors – capacity to pay a fine - appropriate penalty
SENTENCING PRINCIPLES - no record of previous convictions - good prospects of rehabilitation - remorse - assistance to law enforcement authorities

Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Fines Act 1996
Work Health and Safety Act 2011
Work Health and Safety Regulation 2017

Cases Cited: Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
Jahandideh v R [2014] NSWCCA 178
McColm (Department of Regional NSW) v Tucker [2025] NSWDC 199
R v Youkhana [2004] NSWCCA 412

Category: Sentence

Parties: Andrew McColm (Department of Regional NSW) (Prosecutor)
Robert John Tucker (Defendant)

Representation: Counsel:
M Cahill (Prosecutor)
P Barry (Defendant)
Solicitors:
Lander & Rogers (Prosecutor)
DWF Law (Australia) (Defendant)

File Number(s): 2023/157572

Publication restriction: None

Judgment

1. Robert John Tucker (the offender) appears for after being convicted at trial of an offence under s 32 Work Health and Safety Act 2011 (the Act).

2. The Court’s reasons for the finding of guilt are set out in the decision: McColm (Department of Regional NSW) v Tucker [2025] NSWDC 199 (the verdict judgment). This judgment assumes familiarity with the verdict judgment and adopts the defined terms used in the verdict judgment.

3. The maximum penalty for the offence is a fine of $176,460 (1,730 penalty units).

Facts

4. The factual findings are set out in the verdict judgment. I have taken all of those findings into account in coming to the appropriate sentence. What follows is a summary of the relevant factual findings in the verdict judgment to permit an understanding of the sentence imposed.

5. On 24 May 2021 the offender and Matthew Richens were working at the West Wyalong Quarry operated by Regional Quarries Australia Pty Ltd (RQA) situated on Wargin Road, West Wyalong, New South Wales (the Quarry). On the morning of the incident, the offender was the driver of a white Nissan 4WD Utility registration number BQ 77 YP (the vehicle) and was ferrying workers from the workshop near the front entrance of the Quarry to the area where a new crush plant (the NCP) was being constructed, which was opposite the existing or old crush plant (the OCP). The offender was employed at the Quarry as the workshop manager and responsible for supervising Mr Richens.

6. The OCP and part of the NCP ran parallel to each other over about 100m. There was a gap between the OCP and the NCP of about 25-35m. The gap between the OCP and the NCP was used as a traffic thoroughfare (the thoroughfare) by a number of vehicles including:

(a) light vehicles used by the workers to transport workers, tools and equipment to the construction site of the NCP. These workers drove from the front entry of the Quarry and the workshop and parked in the thoroughfare in the vicinity of the NCP; (b) light vehicles used by workers at the Quarry involved in sales and production; (c) Heavy Mining Equipment (HME) in particular a large articulated dump truck driven by Dave Flanagan to take product from the OCP to the stockpiles; and (d) other assorted vehicles and mobile plant used in the construction of the NCP including a service truck fitted with welding equipment, a mobile crane and a forklift.

7. The thoroughfare was marked as a designated route to the pit on the Quarry’s Traffic Management Plan (TMP). The thoroughfare ran roughly in a north-south direction.

8. Workers involved in the construction of the NCP, including the welders and the JLE workers, regularly worked on foot in the vicinity of the NCP and occasionally walked between the NCP and the OCP, traversing the thoroughfare, to undertake their allocated tasks.

9. The construction of the NCP was “high risk construction work” within the meaning of cl 291 Work Health and Safety Regulation 2017 (the Regulations) because the construction of the NCP was being carried out:

(a) adjacent to a traffic corridor used by traffic other than pedestrians; and (b) in an area of a workplace where there was movement of powered mobile plant, including HME and light vehicles.

10. Prior to the incident, RQA had identified the hazard of workers colliding with heavy mining equipment (HME) and light vehicles in the vicinity of where the NCP was under construction.

11. Safety information was provided to workers in their induction to the Quarry about the hazard of mobile plant, the site speed limit and the TMP, together with instructions to engage in positive communications and to use amber flashing lights on light vehicles and HME. The use of amber flashing lights on light vehicles and HME was monitored and enforced to some extent at the Quarry.

12. The New Build SWMS identified that the hazard was particularly present at the times that workers arrived and departed from the NCP construction site. The specified control measures included the use of radios to engage in positive communications, the activation of flashing amber lights on light vehicles and HME, the implementation of the TMP and the use of exclusion zones.

13. The LV SWMS identified the hazard of light vehicles colliding with other vehicles, plant or pedestrians. The specified control measures were:

14. all vehicles must have an operating amber flashing light

15. always contact the foreman or supervisor before entering any unfamiliar work area

16. all vehicles must park at least 30m from any HME

17. all designated light vehicles parking on site is reverse parking only

18. light vehicles must give way to all HME

19. speed limit 40km/hr (or in line with site rules where appropriate)

20. pedestrians must be vigilant of all mobile equipment at all times and use designated walkways where provided

21. eyes and mind on task whilst on foot within operational areas.

22. The offender had been trained on the New Build SWMS and the LV SWMS prior to the incident.

23. The hazard in the context of the construction of the NCP was discussed at site safety meetings held on 26 February 2021, 26 March 2021 and 16 April 2021. The offender was present at the first two of these meetings only.

24. At about 7.05am on 24 May 2021, the offender drove Mr Richens to the NCP, where Mr Richens was going to perform welding work at the OCP. When the vehicle drove into the thoroughfare the amber flashing light was not activated.

25. When the offender arrived at the NCP he parked the vehicle on an angle to the thoroughfare, to the east of and approximately parallel to a mobile crane, so that the vehicle was facing approximately south-west.

26. Mr Richens exited the vehicle and retrieved something from the tray of the utility. He then walked in a straight line from the middle of the vehicle and almost perpendicular to the door where he alighted from, travelling in approximately an east-south-easterly direction. He walked about 10m, before crouching to pick up a container of nuts and bolts that had been left on the ground. When crouched down, Mr Richens was facing approximately east and predominantly had his back to the vehicle. Mr Richens did not have a handheld radio with him.

27. The offender exited the vehicle and spoke to Mr English, who was having difficulty starting the forklift and asked him for a jumpstart. The offender then went to the service truck to look for a set of jumper leads, where he was told by Mr Cassidy that they were in the workshop.

28. About one to two minutes after arriving at the scene, the offender returned to the vehicle and got into the driver’s seat. He did not activate the vehicle’s amber flashing light and did not make an announcement over the radio as to where he was going. When the offender got into the vehicle Mr Richens was still crouching in the same position.

29. The offender told the police in his recorded interview with them that he looked in the rear-view mirror and over his shoulder to see if there were any vehicles behind him before commencing to perform a U-turn. He also told the police that there were no impediments to his vision, including the sun. The offender estimated that Mr Richens was crouched about 10-15 feet from the vehicle, but the video footage demonstrates he was further away than that.

30. The offender drove the vehicle forwards and immediately turned the vehicle hard left to perform a U-turn and to travel north towards the workshop. The vehicle travelled in an arc, before the front of the vehicle hit Mr Richens in the back while he was crouched down. The impact knocked Mr Richens forward and the vehicle proceeded to drive over him. After driving a few metres after driving over Mr Richens, the offender stopped and got out of the vehicle and went to Mr Richens’ aid.

31. Mr Richens got up off the ground and walked a few steps in a westerly direction towards the NCP before hunching over and then collapsing on the ground where other workers came to his aid. Emergency services attended, but Mr Richens was pronounced dead at the scene.

32. A short time after the incident, the vehicle was moved. It first travelled to the front office to retrieve a defibrillator and then it travelled again to the front entrance to escort the ambulance to where Mr Richens was. It was unclear from the evidence who drove the vehicle on those occasions, but it does not matter, except to say that the amber flashing lights were operating on those occasions.

33. The offender knew or ought to have known that there were workers on foot in the vicinity of the NCP. He had just driven Mr Cassidy and Mr Richens to the area and they were both on foot. He also interacted with other workers in the area such as Mr English. It was also apparent from the video evidence that there were a number of other workers in the area, who came out to investigate what had occurred in the incident.

34. As an author of the New Build SWMS, the offender knew that there was a risk of workers being struck by light vehicles in the vicinity of the NCP and the thoroughfare at the beginning and end of shift, when workers were arriving for work and leaving for the day.

35. The offender had been trained on the LV SWMS that also identified the risk.

36. The offender knew that the control measures had been implemented to avoid the risk arising from a collision between, amongst other things, light vehicles and pedestrians. In particular, the offender knew of the requirements to activate the amber flashing lights on the vehicle and to engage in positive communications. The offender was employed as a supervisor and had responsibility for enforcing safe work practices at the Quarry.

37. The offender was present at the site safety meetings prior to the incident at which the risk of a collision between vehicles and pedestrians in the vicinity of the NCP was discussed.

38. The offender, as a licensed driver in his early 60s, was aware of the need to keep a proper look out for vehicles, HME and pedestrians when operating a light vehicle at the Quarry and similarly on public roads.

39. The offender held a heavy vehicle drivers licence (HVDL) and was licensed to operate multi-combination vehicles. As the holder of a HDVL, I infer that the offender was aware that all vehicles have blind spots in which it can be difficult to see other vehicles and pedestrians.

40. The action of Mr Richens crouching down and staying in the one position to pick up the nuts and bolts on the ground was unusual. I accept that the offender would not have expected Mr Richens to be where he was when the collision occurred.

41. I accept that the offender did not see Mr Richens as he got into the vehicle, as he performed the U-turn to the left or before the vehicle struck Mr Richens.

42. Immediately prior to the incident, the offender did not comply with the safety procedures at the Quarry. He did not activate the amber flashing lights on the vehicle on entering or leaving the vicinity of the NCP or make a radio announcement as to where he was going. I am satisfied that the offender’s actions immediately prior to the incident demonstrated a lack of attention to the control measures that had been implemented to avoid collisions between light vehicles and pedestrians at the beginning of each shift when workers on foot were present in the vicinity of the NCP.

43. The offender could have and should have seen Mr Richens where he was crouching, immediately before he got into the vehicle and from the driver’s seat of the vehicle before he put the vehicle in motion. I am satisfied that looking around for workers on foot before moving the vehicle was a reasonable step that the offender could have taken but failed to take.

44. In executing the U-turn the offender turned the vehicle hard left, simultaneously with moving the vehicle forwards and driving at a constant speed. The offender told the police in his recorded interview that he looked in his rear-view mirror and over his shoulder to look for vehicles behind him before starting the U-turn. I am satisfied by reference to the way that the offender drove the vehicle that he assumed that there were no pedestrians or vehicles in his intended path and proceeded accordingly, without taking into account the possibility that there were workers on foot in the area and exercising care that there were no such workers in his path. I am also satisfied that the offender knew or ought to have known that by performing the U-turn to the left and by turning the vehicle hard left that he would encounter a blind spot in the vicinity of the front left-hand corner of the vehicle.

45. I am satisfied that by turning the vehicle hard left that the offender created a blind spot where Mr Richens could not be seen from the driver’s seat for a short time before the impact. However, I am satisfied that the offender could have and should have seen Mr Richens again a short time before the impact and that he had time to avoid the collision if he had been driving at a speed at which he could avoid a pedestrian if he encountered one.

46. For the reasons given in the verdict judgment I was satisfied beyond reasonable doubt that the offender was in breach of the duty he owed under s 28(b) of the Act and that his failure exposed Mr Richens to a risk of death or serious injury.

The Offender’s Case on Sentence

39. The offender read an affidavit sworn by him on 25 July 2025, that can be summarised as follows.

40. The offender is currently 66 years of age and owns a home in West Wyalong, that is subject to a mortgage. He presently lives with his wife and his daughter and her family. His son-in-law has recently been discharged from the Defence Force and is presently looking for work.

41. The offender’s wife suffers from a number of longstanding serious medical conditions. Mrs Tucker has required considerable assistance since 1992. The National Disability Insurance Scheme (NDIS) pays for a full time carer when the offender is at work, volunteering or performing work around the house. The offender also provides considerable domestic assistance to his wife.

42. The offender’s grandson has a medical condition and the offender provides financial assistance to his daughter for his treatment.

43. The offender’s son suffered from chronic medical conditions as a child and died when he was aged eight in 2004. The offender took on multiple jobs to pay for his son’s treatment. In 2003 the offender was first diagnosed with depression when dealing with the stress of his son’s illness and it continued to affect him after his son’s passing.

44. The offender has an uninterrupted work history. He first got a job as an apprentice boilermaker in 1976. The offender has to continue working to support his wife and to pay medical expenses and the mortgage.

45. The offender presently earns about $XXX per annum, which amounts to about $XXX per week. He also receives a carer’s pension of about $160 per week.

46. The offender’s home, which is jointly owned with his wife, was valued in 2024 at $355,000 and the amount owing on the mortgage as at 4 July 2025 is about $XXX. The offender owns a 2015 Ford Ranger that is insured for about $30,000.

47. The offender presently has about $XXX in four bank accounts. A large proportion of those funds were received on 15 April 2025 being an amount inherited by his wife, from her mother’s estate.

48. The offender has a modest superannuation balance which he has not begun to access. His wife has no superannuation.

49. The offender pays $445 per month in home insurance and $150 per month in car insurance. The offender pays $150 per week for health insurance and about $30,000 per year in out-of-pocket health expenses for his wife.

50. The offender has been a volunteer fundraiser for Bear Cottage since about 2002 and has also made donations to it, in recognition of the care provided to his son. The offender makes regular donations to the Kids With Cancer and the Royal Flying Doctor Service. The offender is currently a volunteer for West Wyalong Junior Rugby League Club.

51. The offender has expressed his deep regret for the incident and acknowledged the pain caused to Mr Richens’ family. The incident has adversely impacted the offender and he still has trouble sleeping. The offender understands the emptiness caused by the loss of a loved one. He would like to meet with Mr Richens’ family when the proceedings are over.

52. The offender tries to stay busy as a way of coping with his recurring memories of the accident and Mr Richens. He tries not to drive on site at the Quarry, because he gets emotional remembering the incident.

53. Following the incident, the offender is more vigilant and reinforces the procedures introduced after the incident with the workers in the workshop.

54. RQA have paid the offender’s defence costs, but there is presently no arrangement for them to pay any adverse costs order.

55. The offender voluntarily participated in the recorded interview with the Police and complied with their directions to attend the hospital for drug and alcohol testing. The offender also co-operated with the Regulator’s investigation.

Consideration

56. I have had regard to the objects of the Act set out in s 3 and the purposes of sentencing set out in s 3A Crimes (Sentencing Procedure) Act 1999.

Objective Seriousness

57. The offence involves some objective gravity.

58. There was a risk posed to any workers on foot in the vicinity of the NCP and in the thoroughfare which was obvious and the offender had been made aware of it through training and discussions at site safety meetings. The offender was employed as a supervisor and had responsibility for enforcing safe work practices at the Quarry. In particular, the offender knew about the risk associated with a collision between a light vehicle and pedestrians at the beginning and end of shift when workers were arriving for work and leaving for the day but failed to keep a proper look out in operation of the light vehicle and to implement the specified control measures. Whilst the offender’s failure to implement some of the control measures were not causative of Mr Richens' exposure to the risk, they demonstrated that the offender was not paying sufficient attention to the safety of other workers.

59. Whilst I was satisfied that the offender failed to keep a proper lookout there are a number of mitigating circumstances that impact the objective seriousness of the offence. First, Mr Richens was in an unexpected location and crouched down, making it difficult to anticipate that he was there and to see him. Second, the offender drove off at a constant speed that in the absence of other factors might have been reasonable in the circumstances. Third, the offender’s failure to keep a proper lookout occurred over a very short period of time. In all of the circumstances, the degree of negligence involved in the incident was at the lowest end of the scale.

60. The likelihood of the risk coming home was low to moderate.

61. The steps that the offender could have taken to minimise the risk were known to him, simple, convenient and inexpensive.

62. The consequences of the risk coming home included a risk of death.

63. The death of Mr Richens is an aggravating feature of the offence.

64. I have had regard to the maximum penalty for the offence.

Deterrence

65. The penalty imposed in relation to the offences must provide for general deterrence. Workers must take the obligations imposed by the Act very seriously. The community is entitled to expect that all participants in work at a workplace will comply with safety requirements. General deterrence is a significant factor when safety obligations are breached: Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37 at [180].

66. There is some need for specific deterrence in this case. The offender is still employed at the Quarry where workers are potentially exposed to risks posed by the operation of light vehicles while there are workers on foot in the vicinity of the NCP and the thoroughfare. However, I am satisfied that his involvement in the tragic death of Mr Richens has had a salutary effect on the offender. He has suffered some psychological trauma as a consequence of the incident which will remain with him for life.

Aggravating factors

67. The injury, harm and loss caused by the s 32 offences was substantial: s 21A(2)(g) Crimes (Sentencing Procedure) Act 1999. In order for the aggravating factor to be established, I must be satisfied beyond reasonable doubt that the harm was greater or more deleterious than may ordinarily be expected for the offence in question: R v Youkhana [2004] NSWCCA 412 at [26]. The offence does not require an injury to be sustained but only the creation of a risk. The death of Mr Richens is sufficient to establish the aggravating factor.

Mitigating factors

68. The offender does not have a record of prior convictions: s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999. The offender is currently 66 years of age and has been working in the industry for approximately 40 years.

69. The offender was a person of good character: s 21A(3)(f) Crimes (Sentencing Procedure) Act 1999. The offender has no previous convictions and has consistently demonstrated good character through longstanding community involvement.

70. The offender has good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. I am satisfied that the offender now understands the potential outcomes when insufficient attention is paid to the implementation of control measures. I accept the offender’s evidence that he is now much more vigilant. Overall, the offender’s departure from his duty was a fleeting one, notwithstanding the serious consequences. I am satisfied that the offender has good prospects of rehabilitation.

71. The offender has expressed remorse: The offender expressed remorse to the Court and to Mr Richens’ family. I am satisfied that the offender has expressed genuine remorse and contrition. The offender has expressed his deep regret and sorrow for the death of Mr Richens, and his part in that outcome. The offender pleaded not guilty and wishes to preserve his option to appeal the Court’s finding of guilt. Notwithstanding that, I am satisfied that the offender has been deeply impacted by the incident and by the death of Mr Richens. I am satisfied that the offender’s expression of remorse is genuine and that it is properly a matter to be taken into account in mitigation of the sentence imposed, even though the requirements of the mitigating factor set out in s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999 are not met.

72. The offender co-operated with the Police investigation and the Regulator’s investigation: s 21A(3)(m) Crimes (Sentencing Procedure) Act 1999

Capacity to pay a fine

73. The Court is required to have regard to s 6 Fines Act 1996 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: Jahandideh v R [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.

74. I am satisfied on the evidence that the offender has a limited capacity to pay a fine. At 66 years, he has no alternative but to continue working to support himself and his wife. His wife’s medical needs are substantial and the out-of-pocket expenses for her care are significant and ongoing. The prosecutor is entitled to an order for at least some of its costs, which are likely to be significant. I am satisfied that I should reduce the appropriate fine to reflect the offender’s limited capacity to pay.

Costs

75. At the sentence hearing the offender relied on a detailed affidavit of his solicitor Matthew Giles, deposing as to delays in the progression of the case by the prosecutor, the offender’s success on some issues and the retention of an expert by the prosecutor, whose evidence was not ultimately relied on. As a consequence, the offender retained his own expert and those costs were wasted.

76. The prosecutor conceded that the prosecutor should not have an order for its costs in relation to the retention of its expert and that the prosecutor should pay the offender’s costs thrown away relating to the retention of its expert.

77. Having had the opportunity to review the evidence of Mr Giles in detail, I have come to the view that the prosecutor should be invited to make further written submissions as to whether its costs should be limited by reference to the way in which it prepared the case for trial, and in particular whether it would be appropriate to award the prosecutor a proportion of his costs.

78. It is clear from the evidence that the case was prepared in tandem with the offences alleged against RQA. It is arguable that this approach over complicated the case against the offender and led to delays. It is inevitable that when the preparation phase of a case is extended that the legal costs on both sides increase. The case that ultimately succeeded against the offender was a simple one.

79. I will defer the making of costs orders until I have received further evidence and/or submissions from the prosecutor on the issue identified in [77]-[78] above, and I will determine the issue on the papers.

Penalty

80. Robert John Tucker is convicted.

81. I have taken into account the Victim Impact Statement (VIS) prepared by Julie Richens that was read aloud by her in the sentence hearing. Pursuant to s 30E Crimes (Sentencing Procedure) Act 1999, I have taken into account that the harmful impacts of Mr Richens’ death endured by his family is evidence of harm to the community. I am satisfied that it is appropriate to take into account the VIS in determining the appropriate penalty.

82. The appropriate fine is $20,000, which I will reduce to $5,000 to reflect the offender’s limited capacity to pay.

83. I impose a fine of $5,000.

84. I order pursuant to s 122(2) of the Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.

85. The prosecutor is to provide to my Associate and serve any evidence and/or written submissions (limited to 5 pages in length), on the issue of costs referred to in [77]-[78] above, on or before 5pm on 22 August 2025.

86. The final orders as to costs of the proceedings will be determined on the papers.

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