In a historic move, the New South Wales (NSW) government is set to introduce legislation that will remove the consideration of ‘good character’ during sentencing hearings for all crimes. This reform, inspired by a significant review led by retired Supreme Court judge Peter McClellan, represents a pivotal shift in the legal landscape of Australia, particularly in the treatment of sexual abuse cases. The announcement has been met with enthusiasm from survivors of abuse, but it has also raised concerns regarding the potential impact on defendants’ rights.
A Groundbreaking Legislative Change
On Wednesday, the NSW government will become the first jurisdiction in Australia to implement this transformative legislation. Currently, offenders can present positive character references during sentencing, which may influence the judge’s decision. Under the new rules, judges will no longer consider such references as mitigating factors. This change follows a review commissioned in April 2024 by the NSW sentencing council, prompted by advocacy group Your Reference Ain’t Relevant, which argued for the removal of good character references specifically in cases involving child sexual offenders.
The existing legal framework includes a “special rule” for child sex offenders, which disallows the use of good character or lack of prior convictions as a mitigating factor if these elements are deemed to have contributed to the offence. The recent review’s recommendation calls for a broader application of this principle, advocating for the abolition of good character considerations across all offences.
Reactions from Survivors and Legal Experts
Survivors of sexual abuse have expressed strong support for the proposed reforms, viewing them as a necessary advancement in the judicial approach to sentencing. Harrison James, co-founder of Your Reference Ain’t Relevant and a survivor himself, emphasized that the changes would ensure the trauma experienced by victims holds greater weight than the offenders’ reputations. “This is one of the most monumental shifts in how the courts approach sentencing,” he stated.
Michael Daley, NSW Attorney General, echoed this sentiment, stating that offenders should not be able to leverage their social standing to minimise their culpability. “Victim survivors shouldn’t have to sit in court and hear the person who hurt them described as a ‘good person’,” he affirmed.
Conversely, some legal professionals have voiced concerns regarding the potential repercussions of this legislative change. Members of the sentencing council, Felicity Graham and Richard Wilson SC, suggested that while the court should have discretion to disregard good character, removing this principle entirely may yield unintended consequences. They argued that good character can sometimes serve as a pathway to rehabilitation, particularly in exceptional circumstances.
Addressing Social Disparities
The review also highlighted the social inequalities perpetuated by the existing good character considerations, noting that individuals from privileged backgrounds often have greater access to positive references. The Community Restorative Centre pointed out that it is typically white, middle-class men who benefit most from these considerations, thereby reinforcing systemic biases within the judicial process.
In light of this, the Aboriginal Legal Service proposed alternative measures to enhance the experiences of victim survivors without compromising the rights of defendants. They called for procedural reforms that focus on creating trauma-informed and culturally safe environments for those affected by crime.
A Shift in Judicial Perspectives
As Australia moves towards this significant reform, it is important to understand the broader implications of removing good character considerations from sentencing. The change reflects a growing recognition of the need to prioritise the voices and experiences of survivors, particularly in cases of sexual violence. While the legislation is set to take effect in NSW, other jurisdictions are observing this development closely, with similar changes already underway in the Australian Capital Territory and Queensland.
The decision to eliminate good character references signifies a commitment to a more equitable justice system, one that seeks to address historical imbalances and ensure that the rights of victims are upheld. As the legal community grapples with this shift, the hope is that it will pave the way for further reforms that protect the vulnerable while still ensuring fair treatment for all individuals within the justice system.
Why it Matters
This legislative reform in New South Wales is a crucial step towards redefining the balance between victim rights and defendant protections in the justice system. By prioritising the experiences of survivors over the reputations of offenders, NSW is setting a precedent that could inspire similar legislative changes across the country and beyond. This shift holds the potential to reshape judicial attitudes towards sexual violence, ultimately fostering a more just society where the voices of the most vulnerable are heard and respected.
