The New South Wales government is poised to introduce groundbreaking legislation that will fundamentally alter how courts approach sentencing across the state. In a nationwide first, the government will remove the consideration of 'good character' from sentencing hearings, marking a significant departure from centuries-old legal tradition.
Historic Legal Shift
This Wednesday will see the state government become the first in Australia to introduce legislation eliminating 'good character' as a mitigating factor during sentencing hearings. Under current practice, judges typically consider an offender's prior record, general reputation, and positive contributions to society when determining sentences. The proposed changes will end this practice entirely.
Review Recommendations
The legislative move follows a comprehensive review by the NSW Sentencing Council, released on Sunday and commissioned in April 2024. The review was prompted by campaigning from the advocacy group Your Reference Ain't Relevant, which specifically sought to remove good character references during sentencing for child sex offenders.
Currently, NSW law already contains a 'special rule' for child sex offenders, preventing them from relying on good character or lack of previous convictions during sentencing if the court determines those factors facilitated their offences. The sentencing council's review, led by retired Supreme Court judge Peter McClellan, has now recommended extending this principle to all criminal offences.
Council Findings and Dissent
The majority of the sixteen-person sentencing council called for complete abolition of good character considerations across all offences. Their review concluded that good character represents 'a vague and uncertain concept' that lacks evidential support for predicting reoffending risk or rehabilitation prospects.
The review further noted that such considerations engage in 'an unjustified form of moral and social accounting' and can have retraumatising effects while encouraging victim blaming. However, two council members – barristers Felicity Graham and Richard Wilson SC – provided dissenting opinions, arguing instead for giving courts discretion to assign no weight to good character rather than complete removal.
Survivor Perspectives
Harrison James, co-founder of Your Reference Ain't Relevant and a survivor of child sexual abuse, welcomed the proposed reforms as 'one of the most monumental shifts in how the courts approach sentencing.' He emphasised that the changes would ensure 'survivors' lived trauma outweighs an offender's social reputation.'
Many survivors contributed anonymous submissions to the sentencing council review, with one describing how hearing a perpetrator's 'good character' referenced during legal proceedings proved 'deeply retraumatising.' The submission stated: 'It sent the message that his reputation mattered more than the harm he caused me and my sisters he raped.'
Judicial Considerations
Under the proposed changes, judges will retain the ability to consider evidence regarding rehabilitation prospects and likelihood of reoffending, along with absence of previous convictions. However, the latter will no longer serve to demonstrate someone's 'good character.'
NSW Attorney General Michael Daley explained that offenders will be prevented from 'using their reputations and social standing to commit serious crimes and then minimise their culpability.' He 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.''
Social Equity Concerns
The government has indicated that the reform also addresses concerns about good character evidence perpetuating social disadvantage. Submissions to the review suggested that well-connected, wealthy individuals or those from privileged backgrounds typically enjoy greater access to compelling character references.
The Community Restorative Centre specifically noted that 'it is generally white, middle-class men who most benefit from prior good character considerations.'
Opposing Views
Not all stakeholders support the proposed changes. The Aboriginal Legal Service recommended alternative approaches, suggesting improvements to victim-survivors' experiences through procedural changes or support systems that don't infringe 'on the rights of the defendant or the judicial discretion of sentencing courts.'
The dissenting council members, Graham and Wilson, argued that removing the principle for all criminal offences appeared 'reactive to populist demands for ... a more severe approach to sentencing.' They rejected the notion that good character equates solely with social privilege, suggesting it can encourage rehabilitation, particularly in exceptional circumstances involving momentary lapses in judgement.
National Context
All federal, state and territory authorities currently consider good character during sentencing, though most jurisdictions apart from Western Australia maintain variations of the 'special rule' for child sexual offences. This approach received endorsement from the 2017 Royal Commission into Institutional Responses to Child Sexual Abuse.
The Australian Capital Territory is moving toward making character references irrelevant in all sentencing for sexual offences against children. Queensland legislated last year to remove good character considerations for all sexual offences, following Tasmania's 2016 reforms.
Implementation Challenges
NSW originally introduced the 'special rule' following a 2008 sentencing council review, but advocates have raised concerns about its practical application. Sunday's review acknowledged worries that the rule proved 'difficult to apply, and when applied, it is often done inconsistently or problematically.'
A recent case highlighted these concerns: in 2023, Sydney swim coach Paul Frost, convicted of grooming and sexually abusing eleven young students, received character references from his mother and a prominent restaurateur describing him as hardworking, devoted, and a 'champion and a protector of young people and children of all ages.'
Speaking outside court following Frost's sentencing to twenty-four years imprisonment before parole eligibility, Harrison James expressed hope that this outcome would establish precedent for similar cases. The proposed legislation represents the most comprehensive attempt yet to address systemic issues within sentencing practices, potentially influencing legal approaches across Australia and beyond.
