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Preventing courts from considering an offender’s character when sentencing will not lead to better outcomes for marginalized groups, senior lawyers say.
After the NSW government announced it would scrap “good character” as a mitigating factor in criminal sentences, state lawyers said the move would undermine justice.
The laws, introduced to parliament on Wednesday, are designed to stop the trauma victims and survivors face when they hear the person who committed a crime against them is described as a good person. But the NSW Bar Association opposed the changes, saying courts should reserve the right to consider all available evidence before making a decision.
“The proposed reforms would unreasonably limit the criminal court’s ability to understand the offender as a whole,” said the association’s president, Dominic Toomey, SC.
“Whether the crime is an aberration for a person who makes positive contributions to the community is an important consideration and should remain so.”
The changes have been advocated for years by victim-survivor advocates, including Harrison James, a child sexual abuse survivor and co-founder of Your Reference Ain’t Relevant.
“This reform moves the courts away from privileging the social position of offenders towards centering the lived experiences and trauma of survivors,” James told AAP.
Recommendations made by the Sentencing Council of NSW said the use of “good character” contributed to social disadvantage. Wealthy and influential criminals have far greater access to positive character references, while those with intellectual disabilities are often frozen out, the council’s report found.
Toomey rejected this view and said the real obstacle to equal justice was the lack of funding for services such as Legal Aid and the Aboriginal Legal Service.
“Otherwise good character evidence is being used in criminal proceedings by criminals from a wide range of backgrounds, including disadvantaged people,” he said.
Bar members Felicity Graham and SC Richard Wilson were the only dissenting voices among the 21 voices in the Sentencing Council report.
They argued that recognizing good character could encourage the rehabilitation of offenders, as the law has done for decades.
AAP
