Criminals convicted of any crime will no longer be able to rely on glowing character references during sentencing under the changes introduced. New South Walesin an action supported by survivors of sexual assault, but which others say could limit the rights of defendants.
On Wednesday, the state government will become the first to introduce legislation across the country to remove “good character” from consideration in sentencing proceedings when judges hear about someone’s prior record, general reputation and any positive contribution to society. as mitigating factors.
It follows a recommendation from a NSW Sentencing Council review released on Sunday, which began in April 2024 following a campaign by YourReference to remove good character references when sentencing child sex offenders.
Under NSW’s current laws, child sex offenders are subject to a “special rule” which means they cannot rely on good character or a lack of previous convictions when sentencing if a court determines they assisted them in committing the offence.
A majority of the 16-member sentencing panel, led by retired Supreme Court Justice Peter McClellan, called for the abolition of good character checks for all felonies, although two members offered dissenting opinions.
The good character “is based on a vague and uncertain concept, lacks evidence to support its value in predicting the likelihood of reoffending or rehabilitation, and engages an unfair form of moral and social accounting”, which has a re-traumatizing effect and encourages victim-blaming.
Your reference is not the relevant cofounder, Harrison James, a survivor of child sexual abuse, who says that reforms ensure that “the trauma of the survivor’s life outweighs the social reputation of the perpetrator.”
“This is one of the most monumental changes in how courts approach sentencing,” he said.
Under the changes, judges can still consider evidence about someone’s rehabilitation prospects and likelihood of re-offending, as well as a lack of previous convictions, but the latter can no longer be used to prove someone is of “good character”.
The NSW Attorney General, Michael Daley, said criminals “can’t use their reputation and social status to commit serious crimes and minimize their offending”.
“Victim survivors don’t need to sit in court and describe the person who hurt them or their loved ones as a ‘good guy,'” he said. The discussion of good character remains during the trial itself to establish the credibility of the alleged offender or the likelihood that they have committed the crime.
Sign up for: AU Breaking News Email
Many survivors of sexual abuse have written to the Sentencing Council to support that your reference is not relevant. One anonymous submission said it was “deeply refreshing” to hear the “good character” of the parent of the alleged sex abuser mentioned in the legal process.
“It sent a message that his reputation was more important than the harm he did to me and my sisters when he raped me,” the submission said.
The government said the reform also responds to concerns that evidence of good character perpetuates social disadvantage. Submissions to the review said people who are well-connected, wealthy or come from privileged backgrounds have more access to good character references. The Center for Community Renewal says that “white, middle-class men in general benefit most from early good character checks.”
But others also advised against the change. The Aboriginal Justice Service recommends that the government take steps to improve the experience of victim-survivors through procedural changes or support systems that do not infringe “on the rights of the defendant or the judicial discretion of sentencing courts”.
“We recognize the need to improve victim-survivors’ experience in the court system, as processes are often not trauma-informed or culturally safe and can cause distress and distress for many victim-survivors, particularly Aboriginal victims,” the legal service wrote.
Two members of the Sentencing Council, lawyers Felicity Graham and Richard Wilson SC, said they supported the court’s discretion to give no weight to good character, but said removing the principle for all criminal offenses would “respond to popular demands … for a more severe approach to sentencing”.
Good character by promoting rehabilitation, including in exceptional circumstances, “society They reject the idea that “is synonymous with power”.
“A person may commit a crime under unusual or stressful circumstances or when exercising a momentary lapse of judgment,” they said.
All federal, state and territory authorities currently consider good character, a centuries-old legal principle, in sentencing, but all but Western Australia have variations on the “special rule” for child sex offenders, which was endorsed in 2017 by a royal commission into the institutional response to child sexual abuse.
ACT is moving to make character references irrelevant in all sentencing for child sex offences. Last year, Queensland passed legislation to remove good character offenses for all sex offences, following Tasmania in 2016.
NSW introduced the “special rule” after a 2008 review by the Sentencing Council, but lawyers raised concerns about its effectiveness, saying Sunday’s review was “difficult to apply, and when applied, it is often done inconsistently or problematically”.
In 2023, Paul Frost, a Sydney swim coach, was convicted of physically and sexually abusing 11 young students, Instructions received From his mother, Lola Frost, and restaurateur John Fink, he was described as hardworking, dedicated and “a champion and protector of youth and children of all ages.”
Speaking outside court, Harrison said he hoped James Frost’s sentence – 24 years in prison before becoming eligible for parole – would set an example for others convicted of similar crimes.
Additional reporting by Jordyn Beazley
In Australia, children, young people, parents and teachers can consult Kids Helpline 1800 55 in 1800; Older survivors can get help Blue Knot Foundation on 1300 657 380. In the UK, the NSPCC Provides support for children on 0800 1111 and adults concerned about children on 0808 800 5000. National Association for Persons Abused in Childhood (Napak) offers support for adult survivors on 0808 801 0331. In the US, call or text Children’s Aid abuse hotline at 800-422-4453. Other sources of help can be found here Child Helpline International
