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[2025] NSWDC 491
General information, not legal advice.
District Court of NSW
2025-11-27
Strathdee DCJ
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: SafeWork NSW v Matthew McCourt [2025] NSWDC 491
Hearing dates: 11 November 2025
Date of orders: 27 November 2025
Decision date: 27 November 2025
Jurisdiction: Criminal
Before: Strathdee DCJ
Decision: (1) Matthew McCourt is convicted.
(2) The appropriate fine for the offence is $180,000 and that will be reduced by 25% to reflect the plea of guilty, leaving a fine of $135,000.
(3) In exercising my discretion under s 6 of the Fines Act 1996 (NSW), that fine will be reduced by 25%.
(4) Accordingly, I order the defendant to pay a fine of $101,250.
(5) Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine imposed is to be paid to the prosecutor.
(6) Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW), the defendant is to pay the prosecutor’s costs as agreed in the sum of $16,500.
Catchwords: CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury – maximum penalty
FINES ACT 1996 – s 6 – discretion to reduce the fine based on the defendant’s capacity to pay a fine – financial documentation
COSTS – prosecutor’s costs
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22
Criminal Procedure Act 1986 (NSW), s 257B
Fines Act 1996 (NSW), ss 6, 122
Work Health and Safety Act 2011 (NSW), ss 31, 32
Cases Cited: Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338; [2016] NSWCCA 37
Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610; [2000] NSWIRComm 71
Environmental Protection Authority v Barnes [2006] NSWCCA 246
Ferguson v Nelmac Pty Ltd (1999) 92 IR 188
Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384
Haynes v CI & D Manufacturing Pty Limited (No 2); Callaghan v CI & D Industries Pty Limited (No 2) (1995) 60 IR 455
Inspector Beacham v J & L Marble Pty Ltd [2009] NSWIRComm 100
Inspector Fraser v Karabelas (No 2) [2011] NSWIRComm 153
Jahandideh v R [2014] NSWCCA 178
Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534
Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
McColl v John Watson Building Services Pty Ltd (2004) 137 IR 310; [2004] NSWIRComm 353
Morrison v Powercoal Pty Ltd (No 3) (2005) 147 IR 117; [2005] NSWIRComm 61
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Nash v Silver City Drilling (NSW) Pty Ltd; Attorney General for New South Wales v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96
Orbit Drilling Pty Ltd v The Queen (2012) 35 VR 399; [2012] VSCA 82
R v Cage [2006] NSWCCA 304
R v MA (2004) 145 A Crim R 434; [2004] NSWCCA 92
R v Miria [2009] NSWCCA 68
R v MMK (2006) 164 A Crim R 481; [2006] NSWCCA 272
R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
R v Youkhana [2004] NSWCCA 412
Rahme v R (1989) 43 A Crim R 81
SafeWork NSW v Harris Holdings NSW Pty Ltd; SafeWork NSW v Harry Zizikas [2017] NSWDC 299
SafeWork NSW v HCM Building Pty Ltd [2019] NSWDC 632
SafeWork NSW v Cosentino Australia Pty Ltd (No 2) [2018] NSWDC 182
SafeWork NSW v Grandcity Constructions Pty Ltd; SafeWork NSW v Cai [2018] NSWDC 398
Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266
Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465
WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700; [2000] NSWIRComm 142
WorkCover Authority of NSW v Sarjame Storage Pty Ltd [2015] NSWDC 151
Texts Cited: AS/NZS 1891.4 – Industrial fall-arrest systems and devices Selection, use and maintenance
AS/NZS 4994.1 - Temporary Roof Edge Protection, Part 1 - General Requirements
Category: Sentence
Parties: SafeWork NSW (Prosecutor)
Matthew McCourt (Defendant)
Representation: Counsel:
Mr D Nagle (Prosecutor)
Mr R Candelori (Solicitor) (Defendant)
Solicitors:
Department of Customer Service (Prosecutor)
McGirr & Associates (Defendant)
File Number(s): 2024/195899
Publication restriction: Nil
These proceedings relate to an incident that occurred on 1 June 2022. Matthew McCourt, the defendant, was the sole director of a previously registered corporation who has pleaded guilty to one charge pursuant to s 32, alleging a breach of the Work Health and Safety Act 2011 (NSW) (WHS Act).
The Agreed Statement of Facts (ASOF) is summarised below.
The Prosecutor tendered the Prosecution Sentence Tender Bundle which became exhibit A, a Victim Impact Statement of Oscar McGuire (Mr McGuire) which became exhibit B, and an Historical Company Extract for Big Bila Energy Pty Ltd (Big Bila), which became exhibit C. The defendant tendered a folder of predominantly financial material which became exhibit 1.
The defendant appeared and gave evidence before me.
Always Energy Pty Ltd (ACN 628 845 858) (Always Energy) was a registered corporation with its registered office being 75 Pacific Drive, Port Macquarie NSW, from which it conducted a business that involved the installation, supply and maintenance of solar panel systems for residential, commercial and government properties.
The defendant was the sole Director and Secretary of Always Energy. He was responsible for the day-to-day management and control of the business, which included setting daily tasks and activities for each employee, and often worked on site with his workers who would raise any general safety concerns directly with him.
Always Energy employed the following workers to undertake the roofing works:
Ben Raymond (Mr Raymond), Site Supervisor, who was a qualified electrician with a qualified supervisor’s electrical licence. He also held a Working at Heights Certificate.
Mr McGuire was a 22-year-old fourth year apprentice electrician and had commenced working for Always Energy in May 2020. As at the time of the incident, Mr McGuire had approximately three years’ experience working in the solar power installation industry as an apprentice and held a White Card. Mr McGuire did not hold a Working at Heights Certificate as at 1 June 2022.
The defendant supervised Mr Raymond, and they would speak before and after the completion of most jobs to discuss the general logistics of the work.
In or around February 2022, Always Energy was engaged by Pycon Homes and Constructions Pty Ltd (Pycon) to install a solar panel electricity system (the work) at a residential home under construction situated at 69 Phillip Drive, South West Rocks, New South Wales (the building).
The building was a single-storey home under construction. The roof of the building was made of corrugated metal sheeting and comprised of three separately pitched roofs. Although temporary fencing was installed along the front, left and right side of the property, it did not extend high enough to act as fall protection at the front of the building.
Upon arriving at the site at approximately 8.10am on 1 June 2022, Mr McGuire and Mr Raymond undertook an inspection of the roof from the ground, in an attempt to determine where the solar panels could be placed. However, due to the height of the roof, the number of hips in the roof and without access to roof layout plans, it was determined that Mr McGuire would need to access the roof in order to undertake preliminary measurements to determine where the solar panels could fit.
Mr McGuire set up a ladder on the western side of the building, with a gutter guard on it, to prevent the ladder from moving. Mr McGuire then accessed the roof, walking over a considerable amount of roof while looking for the best point to attach a harness bracket.
While traversing the roof, Mr McGuire observed that that the roof was slightly dewy. He informed Mr Raymond who reassured him that he should not feel obligated to continue the work if he did not feel safe. Mr Raymond then returned to his truck to get a rope, harness and anchor points. In the meantime, Mr McGuire continued traversing the roof believing that he was not at risk of slipping.
After being on the roof for approximately 5-10 minutes, whilst standing on the eastern side of the building near the edge of the roof, Mr McGuire noticed that Mr McCourt had arrived at the site. At the time, Mr McGuire was crouching on the roof and stood up to wave to Mr McCourt when his feet came out from under him causing him to slide down the roof, slip over the gutter edge and fall approximately three metres to the concrete ground below.
As a result of the fall, Mr McGuire sustained the following injuries:
Right wrist fracture.
Left olecranon fracture.
Dental injuries including loose and chipped teeth.
Mr McGuire underwent surgery for a right wrist open fracture - external fixator and left olecranon tension band wire construct. He was discharged from hospital on 5 June 2022.
Prior to the incident Always Energy had developed a Safe Work Method Statement (SWMS) for solar installation works, the Safe Work Method Statement – “Solar Panel Installation – Roof” dated 11 May 2021. A copy of the SWMS was provided to Pycon prior to attending the site and Mr Raymond and Mr McGuire signed off on the SWMS upon arriving at the site on 1 June 2022.
The SWMS stated it was necessary to “make sure appropriate fall protection is in place when working at heights in excess of 2 metres”. The SWMS also said: “make sure edge protection and handrails are in place and secure where required”. It did not provide further guidance as to when edge protection was “required”. The SWMS also provided for fall arrest systems on roofs.
The safety controls identified for the task of installing solar panels included:
Assess the condition of the roof, pitch and the types of roofing material, such as Colorbond material and glazed tiles. Also ensure that the roof is dry before performing tasks.
Make sure all workers can safely access and work safely on the roof and control the risk of workers falling as well as falling objects.
Only start work once all the above is completed and you are satisfied that the system of work and working environment.
Refer to: SWMS – *“*Working at Height”; SWMS – “Ladders”; and SWMS – “Elevated Work Platforms”.
The site-specific section of the SWMS required a “step by step work summary” to be completed by the person conducting the business or undertaking, or the site supervisor, prior to commencing work at the site. Although this section of the SWMS was completed, the steps listed by Always Energy were generic and did not address the specific hazards and risks associated with the building. The steps listed were:
Edge Protection to be Setup.
Look for any hazards that may cause harm or injury.
Look at property for the safest and easiest way for roof access.
Mr McGuire accepts he signed the last page of the SWMS but says he does not recall sighting it on the day of the incident.
Neither Mr McGuire nor Mr Raymond could recall seeing a copy of the Working at Heights SWMS referred to in the Solar Panel SWMS. Significantly, the Working at Heights SWMS provided the following safety controls for “Fall arrest systems on roofs”:
Make sure fall arrest systems comply with AS/NZS 1891.4 – Industrial fall*-arrest systems and devices Selection, use and maintenance.*
Make sure a clear fall zone is fenced or taped off and restrict access.
Use caution when working on slippery, brittle or fragile roofing materials.
Make sure all workers working on the roof are wearing suitable non-slip footwear.
For roofing activities, the following controls must be used to reduce the risk of falling and injury:
(a) conduct a site-specific risk assessment considering the type of roof surface, the pitch and the length of the roof; (b) make sure a stable and adequately fenced work platform is installed; or (c) make sure perimeter screens, fencing, handrails or other forms of physical barriers are installed; or (d) implement other safety controls that are capable of arresting the fall of a worker, such as safety harnesses, safety nets and/or other safe fall arrest methods;
All roof edge protection must comply with *A**S/*NZS 4994.1 - Temporary Roof Edge Protection, Part 1 - General Requirements.
Make sure all installed edge protection is safe and secure before commencing work on the roof.
Prior to the incident, there were insufficient safeguards to ensure that Mr Raymond and other staff on site had implemented adequate safe work procedures for the work including documented installation instructions, instructions requiring fall protection to be installed in the appropriate manner/order, prior to accessing the roof.
Prior to commencing the work, Always Energy could have obtained pre-installation documents including roof plans, sketches and aerial photographs to enable workers to determine, from the ground, where to install solar plans, edge protection and anchor points.
Mr McCourt did not sufficiently require, arrange or direct that a safe work procedure for the work was developed, implemented or enforced.
Always Energy conducted general toolbox talks on most Monday mornings where a range of topics were discussed, including safety.
Both Mr McGuire and Mr Raymond signed a training register document indicating that they had received training on induction, safety harness use solar panel installation SWMS, COVID-19 safety practices and edge protection SWMS.
Mr McGuire informed SafeWork NSW that he could not recall undertaking training in any of the items listed above and that he had never received training in working at heights.
In relation to safety harness training, Mr McGuire informed SafeWork NSW that the only training he recalls receiving was being shown how to use a safety harness whilst on site. He further stated that he believed that the best method of safety for working at heights was using a safety harness, rather than edge protection.
Mr McCourt could have required, arranged or directed that adequate information, instruction and training be provided to Mr McGuire on the hazards and risks associated with the work and how the hazards were to be controlled, including information, instruction and training on appropriate methods of fall protection including information that temporary edge protection is the most effective means of preventing falls from roof edges.
Mr Raymond had a Working at Heights Certificate and recalled receiving training on the items. He also undertook a course with the Clean Energy Council which covered the technical aspects of the work.
Neither Mr McGuire nor Mr Raymond completed Pycon’s compulsory online induction training prior to attending the site. In an interview with SafeWork NSW, Mr McGuire stated:
“Early on in the year we were meant to complete an online induction for Pycon sites. Unfortunately, the website wasn’t working and I, once we let my employer, Matt McCourt, know, he said that would get sorted out, and that was the last I heard of it.”
Mr McCourt could have required, arranged or directed that supervision, or adequate supervision, be provided to workers when undertaking work at heights. Mr Raymond was aware Mr McGuire was on the roof without a harness or edge protection in place and took no action to prohibit Mr McGuire from continuing the task without appropriate fall protection.
Mr McCourt did not require, arrange or direct that workers be prohibited from accessing the roof when appropriate fall protection measures weren’t in place.
After the incident, SafeWork NSW issued a Prohibition Notice and Improvement Notices to Always Energy.
In compliance with theses notices, Always Energy implemented the following procedures:
Prior to work commencing on the roof, and prior to install, workers are required to provide for approval/sign-off from the site supervisor and Mr McCourt:
(a) photos showing a harness attached to an individual; an anchor point attached to the roof with harness attached; and a safety rail attached via a ladder to the roof. (b) a roof layout of satellite imagery or construction plans identifying the proposed placement of solar panels, anchor points and safety rails.
Mr McGuire very bravely wrote a Victim Impact Statement (VIS) which was tendered in court. He details the continuing pain he experiences, his extreme fear of heights, panic attacks and nightmares, which has led him to require ongoing psychological treatment. His ability to perform physical work is now severely restricted, as is his enjoyment of hobbies that were previously a large part of his life, such as weight-lifting for exercise, recreational bike riding, surfing and fishing. He faces an uncertain future with limited mobility and the possibility of future surgery.
The VIS describes the absolute devastation that Mr McGuire has suffered financially and professionally. As at the time of the incident, he was close to completing his Certificate III in Electrotechnology and becoming a qualified electrician – a career he had worked towards for four years, enduring long hours and low pay but very much wanting to ultimately run his own electrical business. That has all been taken from him as a result of the incident, and he has been forced to choose a different career path.
This change in career momentum and the loss of income incurred has had a serious impact on Mr and Mrs McGuire’s future with them having to put many things on hold and included reconsidering whether they would have children due to his physical limitations.
The impact is clearly horrendous and unending. I thank Mr McGuire for putting these matters before the court, and I hope that as the days pass, his suffering will ease.
The court is to approach a sentencing exercise on the basis of it being one of “instinctive synthesis”: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25.
The approach to sentencing has been identified by Russell SC DCJ in SafeWork NSW v HCM Building Pty Ltd [2019] NSWDC 632 at [109] in this way:
“The court must identify all the factors that are relevant to the sentence, discuss their significance and then make a value judgment as to what is the appropriate sentence given all the factors of the case: Muldrock v The Queen [2011] HCA 39; [2011] 244 CLR 120. This approach to sentencing, known as the “instinctive synthesis” approach, involves the making of a global judgement without any attempt to state precisely how any given factor has influenced the judgement.”
“…The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of offending.”
Subjective factors play a subsidiary role: Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464 at 474-475.
The duties of the defendant require that they ensure the health and safety of workers as far as reasonably practicable. This duty is not delegable, and the duty requires the identification of risks in the workplace and an assessment of measures to address such risks.
The gravity of the offence is determined by the extent of the duty holder’s failure to ensure, so far as was reasonably practicable, that its workers were not exposed to risks to their safety: Orbit Drilling Pty Ltd v The Queen (2012) 35 VR 399; [2012] VSCA 82 at [62] (Maxwell P, Bongiorno JA and Kyrou AJA); Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465.
The objective degree of foreseeability is a matter for the court to have regard to when considering the gravity of the offence: Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610; [2000] NSWIRComm 71 (Capral Aluminium) at [81].
An offence will be serious where there is an obvious or foreseeable risk to safety against which appropriate measures were not taken even though such measures were available and feasible: Morrison v Powercoal Pty Ltd (No 3*)* (2005) 147 IR 117; [2005] NSWIRComm 61.
Subjective factors should not be permitted to produce a sentence which fails to adequately reflect the seriousness of the offence: WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700; [2000] NSWIRComm 142 at [31].
The Court of Criminal Appeal examined the sentencing process with regard to the WHS Act in the matter of Nash v Silver City Drilling (NSW) Pty Ltd; Attorney General for New South Wales v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96 (Nash v Silver City Drilling). His Honour Justice Basten, under the heading “Assessment of Risk” said at [34]:
“The sentencing judge commenced his consideration with the proposition that ‘[g]reater culpability attaches to the failure to guard against an event the occurrence of which is probable rather than an event the occurrence of which is extremely unlikely.’ However, the truth of that proposition depends upon other considerations, including (a) the potential consequences of the risk, which may be mild or catastrophic, (b) the availability of steps to lessen, minimise or remove the risk and (c) whether such steps are complex and burdensome or only mildly inconvenient. Relative culpability depends upon an assessment of all those factors.”
“The culpability of the respondent is not necessarily to be determined by the remoteness of the risk occurring, nor by a step-by-step assessment of the various elements. Culpability will turn upon an overall evaluation of various factors, which may pull in different directions. Culpability in this case is reasonably high because, even if the pressure event of the force which occurred might not be expected to occur often, the seriousness of the foreseeable resultant harm is extreme and the steps to be taken to avoid it, which were not even assessed, were straightforward and involved only minor inconvenience and a little, if any, cost. That assessment will involve both objective considerations and a consideration of what the respondent’s responsible officers knew or ought to have known.”
I accept that s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (Sentencing Act) is generally regarded as a codification of the common law principles of sentencing: R v MA (2004) 145 A Crim R 434; [2004] NSWCCA 92. The purposes of punishment in the section are constrained by the sentencing principles that exist under the common law such as the principles of proportionality and totality: R v MMK (2006) 164 A Crim R 481; [2006] NSWCCA 272.
The court is obliged to make an assessment of where on the scale of criminality the offence lies referable to the maximum penalty prescribed by the legislature: R v Cage [2006] NSWCCA 304 at [17]-[18] (Latham J).
Where there was an obvious or foreseeable risk to safety against which appropriate measures were not taken, in circumstances where such measures were available and feasible, it will be a serious offence: WorkCover Authority of NSW v Sarjame Storage Pty Ltd [2015] NSWDC 151 at [37] (Kearns DCJ).
The objective seriousness of an offence under s 32 of the WHS Act is considered in the context of the gradation of offences contained in ss 31-32 of the WHS Act: Nash v Silver City Drilling at [54]-[56]. The matters relevant to objective seriousness for a s 32 offence include:
The potential consequences of the risk. Consequences may range from mild to catastrophic. Offending will be more serious where the potential injuries are severe, regardless of whether they are likely to materialize: Nash v Silver City Drilling at [34].
The availability of steps to eliminate or minimise the risk: Nash v Silver City Drilling at [34].
Whether those steps are complex, burdensome or mildly inconvenient. If mitigating steps could easily have been taken, the offending will be more serious: Nash v Silver City Drilling at [34] and [53].
Whether the risk was known or ought reasonably to have been known to or identified by the offender.
Whether the risk was an obvious or clear one.
The vulnerability of the workers exposed to the risk: SafeWork NSW v Grandcity Constructions Pty Ltd*; SafeWork NSW v Cai* [2018] NSWDC 398 at [55] (Russell SC DCJ).
However, I accept that it is the risk that I am assessing the seriousness of, and not the manifestation of. In Nash v Silver City Drilling, his Honour Justice Basten dealt with the proper approach to considering the objective seriousness of offences under the WHS Act, saying at [53]:
“It is important to note that the risk to be assessed is not the risk of the consequence, to the extent that a worker is in fact injured, but is the risk arising from failure to take reasonably practicable steps to avoid the injury occurring. To discount the seriousness of the risk by reference to the unlikelihood of the injury occurring is apt to lead to error. The conduct in question is the failure to respond to a risk of injury, conduct which will be more serious, the more serious the potential injuries, whether or not they are likely to materialise. The objective seriousness of the conduct will also be affected by the ease with which mitigation steps could have been taken.”
The offence simply by its nature and the legislative regime is serious.
The offence arose because of simple omissions by the defendant.
The work that was being performed was on a newly-built property for which there must have been plans drawn. These plans should and could have been obtained before the work commenced, which would have clearly identified to the defendant that appropriate safeguards were required.
Whilst temporary fencing was installed around the building, and scaffolding was erected across the front three quarters of the building, the scaffolding did not extend high enough to act as fall protection at the front of the building.
Mr McGuire was crouching near the edge of the roof on the eastern side of the building where there was no scaffolding, and when he stood up and slipped, he slid down the roof and fell approximately three metres to the concrete ground below.
The defendant did not sufficiently require, arrange or direct that a safe work procedure for the work was developed, implemented or enforced. Nor did the defendant provide information, instruction or safety training to Mr McGuire on the hazards and risks associated with working at heights.
The defendant did not comply with the measures detailed at pars 25, 26, 31, 34 and 35 above.
In fixing a penalty in relation to these offences, an important objective feature is the need for specific and general deterrence. This is enshrined in s 3A(b) of the Sentencing Act.
General deterrence is a significant factor when safety obligations are breached. The fundamental duty of the court to ensure a level of penalty for a breach will compel attention to work health and safety issues so that persons are not exposed to risks to their health and safety at the workplace: Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 at 388 (Hungerford J).
When examining matters of deterrence, both specific and general deterrence apply: R v Miria [2009] NSWCCA 68.
The Court of Criminal Appeal in Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338; [2016] NSWCCA 37 (Bulga) at [177]-[180] reaffirmed the principle that both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process, unless there are exceptional circumstances which would allow a court to depart from this rule, citing with approval the decision of the Full Bench of the Industrial Court of NSW in Capral Aluminium at [74]-[75] which said:
“[74] … It follows that both aspects of deterrence [specific and general] are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39 at [40]-[43]), we would expect such cases to be very rare and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted.
…
[75] … Even where an offender demonstrates good character or a commitment to rehabilitation, the court may be obliged to have regard to the need for general deterrence: see R v Thompson (1975) 11 SASR 217 at 222. This is particularly so where the offence in question is prevalent in society and represents a serious threat to the community. The need for general deterrence in relation to serious offences under the Act is undeniable.”
General deterrence must be a significant feature of the sentence imposed upon the defendant. It can be appropriately used to direct the industry’s attention to the consequences of inattention and the need for greater concentration on the potential risks of death or serious injury associated with the building and construction industry and working, in particular when jobs require working at heights, which are inherently and notoriously dangerous.
The requirement to comply with the expectation of the community, that both large and small employers will comply with safety requirements, means that employers must take the obligations imposed by the WHS Act very seriously.
However, whilst general deterrence is a matter that I must consider in the sentencing process, it is not a factor to dominate the exercise of sentencing discretion to the exclusion of all other factors.
In relation to specific deterrence, the attitude of the defendant to questions of workplace safety and any steps taken to improve the safety of its worksites following a breach of a duty are relevant, as is the propensity for the defendant to reoffend.
In this matter specific deterrence must apply as the defendant continues to operate as a director of another solar installation company.
The injury, emotional harm, loss or damage caused by the offence was substantial: s 21A(2)(g) of the Sentencing Act. In order for this 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] (Hidden J, McColl JA and Levine J agreeing).
I am satisfied beyond reasonable doubt that this harm is more deleterious than may ordinarily be expected, and as such is an aggravating factor pursuant to s 21A(2)(ib) of the Sentencing Act.
“We think that having regard to the specific nature of the legislation, the past record upon which the both the prosecution and the defendants should rely must be intimately bound to the nature of the offences which the Court is considering, namely industrial safety, health and welfare. We add one comment on the question of the previous record, and that is that the Court should attempt to ensure the accuracy of the record and have objective regard to it in relation to the industrial enterprise and the extent of its operations. We consider that the extent of the operations of the defendant enterprises is to be taken into consideration when coming to conclusions having regard to the past record.
Human experience indicates that the larger the number of industrial transactions a company is involved in the larger the number of industrial accidents which occur as a matter of statistical expectation. The safety record of very large company with some prior convictions may, on analysis, be better than that of a small company with fewer such convictions. However, we again emphasise that in the context of the OHS Act the record is only one of the factors to be taken into account in assessing penalty and the essential inquiry must remain the circumstances of the breach in question.”
The defendant has not been subject to a prior conviction under work health and safety law: s 21A(3)(e) of the Sentencing Act, and as such is entitled to the leniency which might ordinarily apply to a defendant with no previous convictions.
I accept that the defendant is a citizen of good character and has had significant involvement on an Indigenous board, the Many Rivers Regional Housing Board (the Board) of which he is the Chair, and he has made many positive changes to the Board and continues to be involved in helping Indigenous people find appropriate housing: s 21A(3)(f) of the Sentencing Act
I accept that the defendant has undertaken changes and since the accident, including asking SafeWork NSW for guidance, and that he is more focused than before on the health and safety of its workers: s 21A(3)(g) of the Sentencing Act. This is not a defendant that had no regard to safety at all – it had systems in place to protect its workers, but there was no enforcement of such policies when the workers went to perform the installation tasks.
I accept that the defendant has demonstrated a commitment to workplace safety and therefore has reasonable prospects of rehabilitation: s 21A(3)(h) of the Sentencing Act*.*
The defendant gave evidence before me and it was apparent that he remains distressed and very remorseful as to what happened to Mr McGuire. I accept that the defendant has accepted responsibility for the offence: s 21A(3)(i) of the Sentencing Act.
The defendant co-operated with SafeWork NSW during its investigations: s 21A(3)(m) of the Sentencing Act.
The defendant entered a plea of guilty to the Amended Summons at an early stage of the proceedings. Such a plea of guilty demonstrates remorse, and I will allow a deduction of 25% for the utilitarian value of the plea in accordance with the principles set out in R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 and s 21A(3)(k) and s 22 of the Sentencing Act.
“6 Consideration of an accused’s means to pay
In the exercise by a court of a discretion to fix the amount of any fine, the court is required to consider:
(a) Such information regarding the means of the accused as is reasonably and practicably available to the court for consideration, and
(b) Such other matters as, in the opinion of the court, are relevant to the fixing of that amount.”
The onus is on the offender to satisfy the court on the balance of probabilities as to the truth of such evidence and its relevance to the fixing of penalty: McColl v John Watson Building Services Pty Ltd (2004) 137 IR 310; [2004] NSWIRComm 353 at [24].
The offender’s capacity to pay is relevant but not decisive: Jahandideh v R [2014] NSWCCA 178 at [16] (Rothman J, Hoeben CJ at CL agreeing).
In Inspector Beacham v J & L Marble Pty Ltd [2009] NSWIRComm 100, Staff J said at [57]-[58]:
“The principles to be applied in respect of an application under s 6 of the Fines Act were discussed by Walton J, Vice-President in WorkCover Authority of New South Wales (Inspector Farrell) v Schrader (2002) 112 IR 284 are as follows:
‘[83] The financial means of the defendant was a matter that was submitted in mitigation of penalty. In this regard I would adopt what I stated in Department of Mineral Resources v A M Hoipo & Sons (at par 50):
“It is proper, nonetheless, to have regard to the financial position and means of the defendant when considering the question of penalty: see Ferguson v Nelmac Pty Ltd (1999) 94 IR 188 at 209. The purpose of a fine is primarily to punish the offender. The burden which will be imposed by virtue of a fine at a particular level will, to some extent, depend upon the financial circumstances and resources of that offender. As a result, the amount and method of payment of a fine will need to take into account, as far as practicable, the financial resources and income of the defendant: see R v Sgroi (1989) 40 A Crim R 197 at 200-201.”
[84] This approach was subsequently adopted in Manpac Industries where the Full Bench of this Court stated (at pars 81-82):
“... Section 6 of the Fines Act 1996 provides that in exercising a discretion to fix the amount of any fine a court is required to consider the means of the accused and such other matters as are relevant to the fixing of that amount. That statutory injunction, of course, has long been recognised as an appropriate part of the sentencing process: see, for instance, Warman International (80 IR at 339); WorkCover Authority (NSW) (Inspector Dowling) v Overtop Pty Ltd (1998) 86 IR 319 at 333; and Profab Industries (49 NSWLR at 714; 100 IR at 76).”
However, and given the primacy of the objective seriousness of an offence in determining an appropriate sentence, the financial situation of a defendant, in our view, needs to be carefully scrutinised. In Ferguson v Nelmac Pty Ltd (1999) 92 IR 188 at 209 - 210, Wright J, President observed:
“... Whilst I accept that the imposition of heavy fines would be a burden on the defendant and its financial resources and that consideration should be given appropriate weight on the question of penalty, it does not necessarily result in the Court not imposing a heavy penalty …
When viewed in the context of the statutory mandate in s 15 the offences were very serious and provided proper weight is given to the subjective considerations and insofar as deterrence is concerned some tempering thereof, the penalty should reflect the objective seriousness of the offence ...”
[85] I would reiterate what the Court stated in WorkCover Authority (NSW) (Inspector Ankucic) v Lyndhurst Trading Co Pty Ltd (2000) 95 IR 462 at 476:
“Where the means of the defendant to pay any fine is raised, the proper course will be to assess the appropriate amount of the fine having regard to the gravity of the offence charged and then reduce the fine to take into account the defendant's means and impecuniosity: see R v Rahme (1989) 43 A Crim R 81 at 86.”’”
“First, and more generally, questions of specific deterrence should take into account the size and scope of the operations of the defendant; a fine which may be crippling to a small business may have virtually no impact on the financial operations of a large corporation. The maximum penalty for the offence is undoubtedly set having regard to such a factor. Secondly, the Court is required to have regard to 'the means' of the defendant, pursuant to s 6 of the Fines Act 1996.”
I accept this authority is relevant to these proceedings. The company consisted of four family members and has endured some financial hardship, and could not be described as a “large corporation”.
The Full Bench of the Industrial Relations Commission of NSW observed in Inspector Fraser v Karabelas (No 2) [2011] NSWIRComm 153, citing Rahme v R (1989) 43 A Crim R 81 that:
“It is well established that a court should first arrive at a penalty and then review it on the basis of any case properly made out by a defendant of a lack of capacity to pay a substantial penalty or any penalty.”
It follows that the question of capacity to pay and, hence, the exercise of the discretion under s 6 of the Fines Act should be considered after the court has determined the appropriate fine(s).
I accept that the principles which are then applicable to the exercise of the discretion conferred by s 6 of the Fines Act are as follows:
The financial position and means of a defendant should be taken into account when determining the fine to be imposed.
The defendant bears both the evidentiary onus and the onus of proof, on the civil standard, in relation to satisfying the court that it does not have the capacity to meet a fine.
It is for the defendant to place detailed financial information that fully discloses his financial circumstances to the court so that a proper assessment of his capacity to pay can be undertaken.
It is for the prosecutor to check the information provided by the defendant and to assist the Court in relation to the assessment of the defendant's capacity to pay.
In any event, notwithstanding the capacity of a defendant to pay a fine, the penalty to be imposed must reflect the objective seriousness of the offence: Ferguson v Nelmac Pty Ltd (1999) 92 IR 188 at [209]-[210]; McColl v John Watson Building Services Pty Ltd (2004) 137 IR 310; [2004] NSWIRComm 353 at [24]-[25]; SafeWork NSW v Harris Holdings NSW Pty Ltd; SafeWork NSW v Harry Zizikas [2017] NSWDC 299 at [134]-[141]; SafeWork NSW v Cosentino Australia Pty Ltd (No 2) [2018] NSWDC 182 at [23]-[24].
The prosecutor submitted that there was insufficient material placed before the court to satisfy me that I should exercise my discretion under the s 6 of the Fines Act. The prosecutor submitted that the Tax Returns provided by the defendant had not been verified by an accountant, and that there were no Notices of Assessment or appropriate bank statements to evidence the defendant’s capacity to pay.
The defendant tendered a bundle of documents that do not clearly demonstrate his personal financial position. I note that the defendant has gone into liquidation.
Mr McCourt has set up a new company, Big Bila, that effectively does the same tasks as Always Energy performed.
Mr McCourt gave evidence before me. When it was put to him that many of the documents that would establish the defendant’s capacity to pay had not been provided, he readily agreed to that proposition.
However, I do not believe that Mr McCourt was trying to mislead the court. On the contrary, I found him to be an honest and open witness, and I accept his evidence. Part of his evidence was that he did not know that certain documents were required, and I accept that as his genuine belief.
Mr McCourt also stated that he is attempting to pay off the debts owed by Always Energy, which I accept and view as an admirable endeavour. He offered to show to the court a letter which was on his phone which indicated that the liquidator did not believe that there would be any assets available after the accounting had been performed.
I accept that the defendant has been honest with the court and I am satisfied that there is sufficient material before me to allow me to exercise my discretion under the Fines Act and I propose to do so.
The issuing of costs against a defendant in both criminal and civil proceedings is not punitive, but rather compensatory to the prosecution: Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 at 543 (Mason CJ).
However, given the objective seriousness of the offending and the requirement for general deterrence, the fine must be such that it satisfies all of the relevant sentencing considerations.
On the basis of the totality of the documents before me, I propose to exercise my discretion under s 6 of the Fines Act and afford the defendant some leniency.
The court is entitled to take into account the fact that the defendant will be liable to pay the prosecutor’s costs when considering any monetary penalty to be imposed on the defendant, particularly in circumstances where there is evidence of a limited capacity to pay a fine, and I have done so. Costs payable to the prosecutor are the “normal” rule as the prosecutor has been successful, although there can be exceptions: see for example, Bulga.
The court can also have regard to the defendant’s own costs that it will have to bear as a consequence of a breach of the WHS Act, and I have done so: Environmental Protection Authority v Barnes [2006] NSWCCA 246 at [78].
I make the following orders:
Matthew McCourt is convicted.
The appropriate fine for the offence is $180,000 and that will be reduced by 25% to reflect the plea of guilty, leaving a fine of $135,000.
In exercising my discretion under s 6 of the Fines Act 1996 (NSW), that fine will be reduced by 25%.
Accordingly, I order the defendant to pay a fine of $101,250.
Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine imposed is to be paid to the prosecutor.
Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW), the defendant is to pay the prosecutor’s costs as agreed in the sum of $16,500.
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Amendment made to appearances
SafeWork NSW
Matthew McCourt [2025] NSWDC 491
(2016) 93 NSWLR 338
(2000) 49 NSWLR 610
(1999) 92 IR 188
(1996) 82 IR 384
(1995) 60 IR 455
(1990) 170 CLR 534
(1999) 90 IR 464
(2005) 228 CLR 357
(2004) 137 IR 310
(2005) 147 IR 117
(2011) 244 CLR 120
(2012) 35 VR 399
(2000) 49 NSWLR 383
(1988) 164 CLR 465
(2000) 49 NSWLR 700
(1975) 11 SASR 217
(2002) 112 IR 284
(1999) 94 IR 188
(1998) 86 IR 319
(2000) 95 IR 462