NSW Government to Abolish "Good Character" Evidence in Sentencing
The New South Wales (NSW) government plans to abolish the use of "good character" evidence as a mitigating factor in sentencing across all criminal trials. This reform, scheduled for introduction to the state parliament this week, aims to reduce trauma for victim-survivors and follows recommendations from the NSW Sentencing Council.
This groundbreaking reform is set to introduce a significant shift in criminal sentencing, focusing on the harm caused rather than an offender's perceived reputation.
Overview of the Reform
The proposed legislation will amend the Crimes (Sentencing Procedure) Act 1999. It will extend a prohibition that currently applies only to child sexual offenders to all convicted offenders. Historically, courts in NSW have considered evidence of an offender's good character, which could influence sentencing outcomes. While good character evidence has been a mitigating factor under both common law and statute, its weight in sentencing has varied.
Background and Rationale
The decision to abolish good character evidence stems from a review requested in April 2024 by the NSW Sentencing Council, an independent advisory body. The council, comprising judges, prosecutors, defense lawyers, victims' advocates, and police, recommended the abolition by a majority, citing several reasons:
- The concept of "good character" is considered vague and uncertain.
- Its use represents an "unjustified form of moral and social accounting."
- It lacks sufficient justification for mitigating a sentence.
- Concerns were raised regarding the potential for offenders to use their status and connections for leniency, and the unequal access to influential character references.
Attorney-General Michael Daley stated that victim-survivors should not be compelled to hear offenders described as "good people" in court. He added that some offenders utilize their reputations to commit crimes and subsequently attempt to minimize their culpability.
Victim-survivors conveyed to the council that hearing offenders described as good people was perceived as re-traumatising and suggested it could convey a message that reputation was prioritized over the harm caused.
An exception already introduced in 2008 prevents child sex offenders from using good character evidence if it aided the commission of the crime.
Impact of the Changes
Under the new law, courts will retain the ability to consider other relevant factors during sentencing. These crucial factors include an offender's:
- Prospects of rehabilitation.
- Likelihood of reoffending.
- Lack of previous convictions.
Differing Perspectives
Two members of the NSW Sentencing Council dissented from the majority recommendation. They argued that recognizing good character could encourage offenders to maintain or return to lawful behavior, aligning with the justice system's goal of rehabilitation. Their view was that good character as a mitigating factor allows for more individualized and just sentencing outcomes, and its removal could lead to a more severe approach.
Advocacy and National Context
The reform has garnered strong support from survivor advocates. This includes Harrison James and Jarad Grice, co-founders of the #YourReferenceAintRelevant campaign, which advocates against the use of good character references, particularly for child sex offenders. Full Stop Australia, an organization supporting victim-survivors, also welcomed the change.
The NSW government's legislation is described as an Australian-first.
Attorney-General Michael Daley noted that other states and territories were observing NSW's response, suggesting the reform could influence similar legislative changes across Australia.
In December, the Australian Capital Territory (ACT) announced its intention to remove good character references for perpetrators of child sexual abuse, indicating a potential broader shift.