NSW to remove ‘good character’ from being considered at sentencing hearings in nationwide first | New South Wales

Criminals convicted of any crime will no longer be able to rely on glowing character references at sentencing under changes introduced in New South Wales, in a move supported by sex abuse victims but others say could limit defendants’ rights.

On Wednesday, the state government will become the first in the country to introduce legislation that will eliminate the consideration of “good character” in sentencing hearings, when judges hear about a person’s past record, overall reputation and any positive contribution to society. as mitigating factors

It follows a recommendation from the NSW sentencing council review, commissioned in April 2024 and published on Sunday, following Your Reference Ain’t Relevant’s campaign to remove good character references in sentencing child sex offenders.

Under NSW’s current law, child sex offenders are subject to a “special rule”; This means they cannot rely on good character or a lack of previous convictions at sentencing if the court decides there were factors that helped them commit the offence.

A majority of the 16-member sentencing council, led by retired supreme court judge Peter McClellan, called for good character considerations to be removed for all crimes, although two members expressed a dissenting view.

The review also stated that good character “is based on a vague and vague concept, lacks evidence to support its value in predicting the risk of reoffending or the likelihood of rehabilitation, and uses an unjustified form of moral and social accounting”, adding that it can have a re-traumatizing effect and encourage victim-blaming.

Your Reference Is Not Relevant Co-founder Harrison James, a child sexual abuse survivor, said the reforms would ensure “the trauma experienced by survivors outweighs the social reputation of the offender”.

“This is one of the most monumental shifts in how courts approach sentencing,” he said.

Under the changes, judges will be able to continue to consider evidence about a person’s likelihood of rehabilitation and likelihood of reoffending, as well as whether they have previously been convicted; but the latter can no longer be used to show that someone is of “good character.”

NSW attorney general Michael Daley said criminals “cannot use their reputation and social status to commit serious crimes and then minimize their culpability”.

“Victims should not have to sit in court and hear the person who harmed them or their loved one described as a ‘good person,'” she said. Good character discussion will continue during the trial to determine the alleged criminal’s credibility or likelihood of committing a crime.

_{Sign up: AÜ Breaking News email}

Many sexual abuse survivors have written to the sentencing council in support of Your Reference Is Not Relevant. An anonymous statement said it was “deeply re-traumatising” to hear the “good character” of a sexually abusive parent mentioned during legal proceedings.

“This sent the message that his reputation was more important than the harm he raped me and my sisters,” the application said.

The government said the reform also responded to concerns that evidence of good character perpetuated social disadvantages. Submissions to the review noted that well-connected, wealthy people or people from a privileged background had greater access to good character references. “Those who benefit most from prior good character evaluations are generally white, middle-class males,” the Community Restorative Center said.

But others also advised against the change. The Aboriginal Legal Service instead recommended that the government take steps to improve the experiences of victim survivors through procedural changes or support systems that do not infringe “the rights of the accused or the judicial discretion of sentencing courts.”

“We recognize the need to improve victimized victims’ experiences of the court system, noting that processes are often trauma-informed or culturally unsafe and can be distressing and re-traumatizing for many victim-survivors, particularly Aboriginal victim-survivors,” the legal service wrote.

Two members of the sentencing council, barristers Felicity Graham and Richard Wilson SC, said they supported giving the court discretion not to weigh good character, but said removing that principle for all offenses was “reactive to populist demands for a tougher approach to sentencing”.

They rejected the idea that good character was “synonymous with social privilege” and said it encouraged rehabilitation, including in exceptional cases.

“A person may have committed a crime while working under exceptional or duress, or because of a momentary lapse in judgment,” they said.

Currently, all federal, state and territory authorities consider the age-old legal principle of good character when sentencing; but all authorities except Western Australia have differences over the “special rule” on child sexual offenses, which was approved by the royal commission in 2017 into institutional responses to child sexual abuse.

ACT is moving to make character references irrelevant in all sentences for child sexual offences. Last year Queensland passed legislation to abolish good character offenses for all sexual offences, following Tasmania in 2016.

NSW introduced the “special rule” in 2008 following a review by the sentencing council, but advocates have raised concerns about its effectiveness; Sunday’s review acknowledged concerns that the rule “is difficult to enforce and, when it is applied, it is often done inconsistently or problematically.”

Sydney swimming coach Paul Frost, who was found guilty in 2023 of grooming and sexually abusing 11 teenage students, received references from his mother Lola Frost and restaurateur John Fink, describing him as hard-working, dedicated and a “champion and protector of young people and children of all ages”.

Speaking outside court, Harrison James said he hoped Frost’s 24-year sentence before being eligible for parole would set a precedent for others convicted of similar crimes.

Additional reporting by Jordyn Beazley

Children, young adults, parents and teachers in Australia Child Helpline 1800 55 In 1800; Adult survivors can seek help at: Blue Knot Foundation From 1300 657 380. in the UK, NSPCC It offers support to children on 0800 1111 and adults caring for a child on 0808 800 5000. National Association of Childhood Abused Persons (napak) offers support to adult survivors on 0808 801 0331. In the US, call or text: child allowance Abuse hotline at 800-422-4453. You can find other help resources at: International Child Helpline