NSW Government to Scrap 'Good Character' from Sentencing Hearings
The New South Wales government is set to introduce groundbreaking legislation that will remove the consideration of 'good character' from sentencing hearings. This move, a nationwide first, follows a recommendation from a comprehensive review led by retired Supreme Court judge Peter McClellan. The reform aims to address concerns that character references can unfairly influence judicial outcomes and retraumatise victims.
Survivors Welcome 'Monumental Shift' in Court Approach
Survivors of sexual abuse have hailed the proposed changes as a 'monumental shift' in how courts approach sentencing. Under the new legislation, offenders convicted of any crime will no longer be able to rely on glowing character references to mitigate their sentences. This change is particularly significant for cases involving child sexual abuse, where advocates have long argued that character references can minimise the severity of offences.
Harrison James, cofounder of the campaign group Your Reference Ain't Relevant and a survivor of child sexual abuse, stated that the reforms will ensure 'survivors' lived trauma outweighs an offender's social reputation'. The group's campaign, which began in April 2024, specifically targeted the use of good character references in sentencing for child sex offenders.
Details of the Sentencing Council Review
The NSW sentencing council review, released on Sunday, involved a 16-person panel led by Peter McClellan. The majority called for the abolition of good character considerations for all offences, citing that the concept is 'based on a vague and uncertain concept, lacks evidence in support of its value in predicting a risk of reoffending or prospects of rehabilitation, and engages an unjustified form of moral and social accounting'.
The review also highlighted that good character evidence can have a re-traumatising effect on victims and encourage victim blaming. Two members of the council, barristers Felicity Graham and Richard Wilson SC, provided dissenting opinions, arguing that removing the principle for all criminal offences was 'reactive to populist demands' and could undermine judicial discretion.
How the Changes Will Work
Under the new legislation, judges will still be able to consider evidence about an offender's prospects of rehabilitation and likelihood of reoffending, as well as a lack of previous convictions. However, the latter will no longer be used to demonstrate that someone is of 'good character'. NSW Attorney General Michael Daley emphasised that offenders will not be able to 'use their reputations and social standing to commit serious crimes and then minimise their culpability'.
Daley added, 'Victim survivors shouldn't have to sit in court and hear the person who hurt them or their loved one described as a 'good person'.' It is important to note that the discussion of good character during a trial itself to establish an alleged offender's credibility or the likelihood they committed an offence will remain unaffected.
Addressing Social Disadvantage and Privilege
The government has stated that the reform also responds to concerns that good character evidence perpetuates social disadvantage. Submissions to the review indicated that well-connected, wealthy individuals or those from privileged backgrounds often have greater access to compelling character references. The Community Restorative Centre noted that 'it is generally white, middle-class men who most benefit from prior good character considerations'.
However, the Aboriginal Legal Service advised against the change, recommending instead that the government improve victim-survivors' experiences through procedural changes or support systems that do not infringe 'on the rights of the defendant or the judicial discretion of sentencing courts'. They emphasised the need for trauma-informed and culturally safe processes, particularly for Aboriginal victim-survivors.
National Context and Historical Background
Currently, all federal, state, and territory authorities in Australia consider good character during sentencing, a centuries-old legal principle. However, most jurisdictions, except Western Australia, have variations on a 'special rule' for child sexual offences, endorsed in 2017 by the royal commission into institutional responses to child sexual abuse. NSW introduced this special rule after a 2008 review, but advocates have raised concerns about its inconsistent application.
Other states are also moving in this direction. The Australian Capital Territory is working to make character references irrelevant in all sentencing for sexual offences against children, while Queensland legislated last year to remove good character considerations for all sexual offences, following Tasmania's lead in 2016.
Case Study: Paul Frost Sentencing
The issue gained prominence in 2023 during the sentencing of Paul Frost, a Sydney swim coach convicted of grooming and sexually abusing 11 young students. Despite his convictions, Frost received character references from his mother, Lola Frost, and restaurateur John Fink, who described him as hardworking, devoted, and a 'champion and a protector of young people and children of all ages'.
Frost was sentenced to 24 years in prison before being eligible for parole. Harrison James expressed hope outside court that this sentence would set a precedent for others convicted of similar crimes, underscoring the need for the legislative changes now being introduced.
The NSW government's initiative represents a significant step towards a more equitable and trauma-informed justice system, balancing the rights of defendants with the need to protect and respect victims.
