07 Aug 2018

Determining A Defendant’s Capacity To Pay In Work Health And Safety Sentencing

Carmel Lee


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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