Determining a Defendant's Capacity to pay in Work Health and Safety Sentencing

07 Aug 2018


1. A Defendant’s capacity to pay any fine sentenced by the Court is a key issue for parties

to consider for sentencing in Work Health and Safety prosecutions. This paper provides

a useful starting point for Prosecution and Defence to consider whether submissions

as to a Defendant’s capacity to pay should be made, and if so, how these may be

presented or tested.


2. This paper will first demonstrate that it is the Prosecutor’s duty to test the Defendant’s

evidence relating to capacity to pay. Secondly it will consider what is relevant in

considering the Defendant’s capacity to pay. Thirdly it will demonstrate how such

evidence can be tested and provide a simple checklist for ways the prosecution can

test such evidence. This paper is intended as a general, non-exhaustive overview of

this area and relevant authorities.



3. In applying its discretion to set a fine for a Defendant to pay on sentencing, the Court

is required to act in accordance with s 6 of the Fines Act 1966 (NSW). Section 6

provides as follows:


“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.”


4. There has been an increase in the number of judgments that expressly refer to s6 of

the Fines Act 1966 (NSW) (irrespective of whether the Defendant has addressed the

section on sentencing) and therefore an increased awareness of the impact of the

above consideration on sentencing. Likewise, the Court has been active in testing the

claims made by the Defendant when they have made submissions relating to capacity

to pay.


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Carmel Lee

Solicitor 2008
Barrister 2012

02 9151 2953

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