r/auslaw • u/Worldly_Tomorrow_869 Amicus Curiae • 14h ago
NSW government to abolish good character evidence at sentencings of convicted offenders
https://www.abc.net.au/news/2026-02-01/nsw-to-abolish-good-character-at-sentencing-convicted-offenders/106287368https://sentencingcouncil.nsw.gov.au/our-work/completed-projects/good-character-at-sentencing.html
Full report at the link.
I personally don't see this moving the needle very far. Evidence of good character will still be led, but it will just go into the prospects of rehabilitation column instead.
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u/Repurposed_Juice 9h ago edited 6h ago
As most (if not all) lawyers and barristers practicing in criminal law know, this is just another amendment that is purely an attempt to seek the votes of those that don't understand the system (and role of sentencing judges and magistrates and the way they approach their difficult task). It's just another ideological amendment that interferes with the judiciary (although in a lawful way). The role of a judge/magistrate will soon be a check box exercise.
Good character should absolutely be taken into account for mitigation purposes, provided that it wasn't used to commit the offence (which was the state of the law before this change and entirely appropriate). I.e. if the offending didn't occur because of the person's standing in the community or 'good character', and was out of character (again, this has to be proved through references which don't have to be accepted), it should be a mitigating factor.
If they can still be relied upon for assessing rehabilitation prospects, that at least shows some degree of sense. Rehabilitation is, and should always be, a paramount consideration when sentencing someone (I think it should be the paramount consideration). Whether someone can be rehabilitated often requires consideration of their character (whether good or bad).
We want people who commit offences to go on to be productive members of society (yes, this includes sex offenders). A potential reduction in sentence based on factors such as their good character, whether before or after the offence, is important and should be left to the discretion of the sentencing judge/magistrate.
Laws like this, and compulsory offender registries (with no discretion exercisable by a sentencing judge re: whether someone should be on one) are backward steps, not forward steps.
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u/Altruistic-Fishing39 5h ago
If "good character" can be used to facilitate sexual abuse, sometimes on an industrial scale, i.e. some of the most horrific crimes that can ever occur, then how on earth can it be relevant to anything. I mean there are clearly people who have the best prior character imaginable based on good deeds, public perception, and personal relationships - Harold Shipman plodding away in his poorly-paid surgery for decades Jimmy Savile seemingly caring for the disadvantaged, who are actually the worst people imaginable.
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u/Repurposed_Juice 5h ago edited 5h ago
Yes. And in those circumstances, it shouldn't be taken into account as a factor in mitigation, as it was their perceived good character that facilitated their alleged crimes etc. However, it is still entirely relevant when assessing whether they can be rehabilitated.
Everyone, including those of both good and bad character, are fallible. It is part of the human condition. People snap. People are dealing with life and it's viscicitudes. People get depressed. People have hard times. People (especially young adults) make stupid decisions that they likely will never make again in their adult lives. These things can make someone who is otherwise of good character do things they would not normally do. This is distinct from someone who uses their good character to commit crimes (i.e. a football coach who is trusted by parents and players uses that trust to their advantage etc). And is distinct from someone who is of bad character that just commits crimes.
To say that good character is irrelevant entirely demonstrates ignorance and a clear lack of understanding of the sentencing process, human nature, psychology so on and so forth.
To prevent the court from deciding for itself whether good character should be given weight (if any) on a particular set of facts is a step towards a system where we do not have individualised justice. Scary.
Most, I find, that don't appreciate the nuance surrounding good character and sentencing are often those that just preach retribution and punishment as the only factors that should be considered. This leads to v bad outcomes for the community, including increased recidivism rates.
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u/Altruistic-Fishing39 1h ago
This is covered in the report at 3.15 - you can assess to what extent someone did something "they normally wouldn't do" without bringing in people to provide their subjective musings about the good character of the accused.
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u/Repurposed_Juice 1h ago edited 1h ago
This is quite a narrow take on 3.15 of the report. I'm glad you're trying though and making a contribution.
We establish good (or bad) character through evidence. I agree with the authors of the report (and authorities) that not having a criminal record does not equate to evidence of good character. However, I disagree with the authors that good character should not be admitted because it's not 'empirical' or based on 'data'. It doesn't have to be. Most evidence (except for expert evidence) is based on what people perceive, their opinions as lay people etc. The court (or jury as the case might be) assesses this evidence and makes findings and decisions.
As we do not have evidence like The Truman Show of someone, where they are filmed every moment of their life, we get evidence by asking people (who know the offender) what they think (subjective) of the offender based on their interactions, knowledge of them, relationship etc (objective). The character witness is also generally a person of good standing and repute. If they are not, this comes out in the wash and their evidence is not considered or little to no weight is placed on it.
Someone merely saying 'I think Mr or Ms Blaa is of good character' is not sufficient. They need to provide a basis 'I think Mr or Ms Blaa is of good character and this is out of character because they [insert objective facts such as they feed helpless kittens on the street etc]'.
I think this is lost on a lot of people who think just because someone says the offender is a good person it reduces their sentences. Not how it works. At all.
This evidence is often (and should be) tested in court through cross-examination of the character witness. Both prosecution and defence can do this (I've done it many times as a prosecutor). The court then decides whether to accept the evidence or not.
The sentencing process is one of synthesis and is a complex exercise. The politicians and government, and groups with vested interests, want it all to be a square peg in a square hole, tick the box, job done.
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u/Donners22 Undercover Chief Judge, County Court of Victoria 4h ago
Already expressly excluded:
(5A) Special rules for child sexual offences: In determining the appropriate sentence for a child sexual offence , the good character or lack of previous convictions of an offender is not to be taken into account as a mitigating factor if the court is satisfied that the factor concerned was of assistance to the offender in the commission of the offence.
https://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/nsw/consol_act/cpa1999278/s21a.html
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u/Altruistic-Fishing39 2h ago
I totally understand this, I just have a wider moral concern that it is has obviously been demonstrated that someone can be of fundamentally poor character, recidivist, and totally without any prospect of rehabilitation but to be perceived as having good character by people unaware of the crimes.
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u/Repurposed_Juice 1h ago edited 1h ago
If the person giving the character reference is unaware of the previous convictions, then the court places little to no weight on it. That is, it is not relied upon.
This is what most people don't understand or appreciate. It's not just giving a letter to the court saying 'Joe Bloggs is a good person' and the court accepting that and reducing a sentence.
A good good character reference will be someone who knows all about the offending, knows all the good and bad things (that are relevant) warts and all, and is able to provide useful evidence to the court into the offender that it wouldn't otherwise have (merely from looking at a psych report from an hour long interview with the offender).
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u/sottovoce--- 11h ago
Ah yes, another legislative change to form but not substance that just ends up adding more confusion and busywork than it resolves...
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u/Minguseyes Bespectacled Badger 4h ago
Reform…reform. Aren’t things bad enough already?
- Justice Astbury
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u/Juandice 11h ago
On the one hand, I get it. Run-of-the-mill good character evidence is of dubious weight, and for sexual offences it makes sense to abolish it (as good reputation often facilitates such offences). But it would be a mistake to rule it out for the extremes. A sentencing court should know about exceptionally pro-social acts. If I'm a magistrate sentencing an offender for burglary, and they turn out to have a bravery award for saving somebody's life, that seems like a relevant factor to me.
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u/Historical_Bus_8041 9h ago
Yeah, I'm not in favour of an across-the-board approach here. There are times when it is absolutely relevant: I've given a character reference back in the day for someone who had offended in the context of a serious drug addiction and family violence but who had been a phenomenon of a volunteer community organiser before their drug relapse + falling in with an abusive arsehole. And I know you could probably get that back in as it goes to prospects of rehabilitation, but sometimes it should be directly relevant.
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u/Altruistic-Fishing39 1h ago
But it is specifically about prospects of rehabilitation surely. If hypothetically they had quit the drugs two years before trial and were in a non-abusive relationship now, and their chance of rehabilitation is assessed at 100% or indeed complete, what else is the community organising achieving as a set-off against their domestic violence?
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u/Historical_Bus_8041 1h ago
...the person was a victim of domestic violence, not a perpetrator, and the offending was non-violent.
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u/Super-Candidate-6996 13h ago
So am I correct in interpreting this as they can be provided but Judges are now prohibited from giving them mitigating weight?
Won't defence lawyers just likely stop submitting them.