New South Wales will abolish the use of “good character” evidence in sentencing criminal offenders after a review heard the centuries-old legal principle benefits White Australians and “re-traumatises” victims of crime.
At present, good character is a mitigating factor at common law and in statute that must be taken into account by a judge if relevant, depending on the circumstances of a case, but cannot be used by child sex offenders if it assisted the offender in committing the crime.
The Minns Labor government will introduce the reforms on Wednesday in response to a report by the NSW Sentencing Council released on Sunday, with 14 out of 16 members calling for a ban on good character considerations for all offences.
The Council found that good character evidence “is likely to be more readily available to some groups than others”, “can exacerbate existing inequality and reinforce systemic biases”, and “can embed and perpetuate social privilege, and disadvantage those who experience systemic marginalisation”.
The report considered a submission from the far-left Community Restorative Centre – which has aboriginal and homosexual flags on its website but not the Australian flag – that claimed good character evidence was racist.
“In our decades of experience providing support to people affected by the criminal legal system, we hold that it is generally White, middle-class men who most
benefit from prior good character considerations,” the submission stated.
The report also took into account submissions from aboriginal groups that claimed good character references perpetuated “White privilege” and were biased against indigenous people.
“Wirringa Baiya [Aboriginal Women’s Legal Centre] submitted that good character sits within a colonial western framework and does not account for the ‘nuances and cultural differences’ of what may be good or bad character within indigenous communities and family and kin networks,” the report stated.
“Aboriginal and Torres Strait Islander offenders may be disadvantaged, because they do not have the same access to good character evidence as other offenders
do. Even if they are considered a person of good character within their community, this character may not be accepted by a court because it looks different from the ‘White and western cultural construct of these terms’.
“Another submission, from the NSW Aboriginal Women’s Advisory Network, suggested that good character references are an extension of White privilege,
noting that ‘the ability to benefit from a good character reference is connected to White privilege and proximity to institutional power’.”
The report concluded that in addition to contributing to “systemic social disadvantage”, good character was ” based on a vague and uncertain concept”, “lacks evidence in support of its value in predicting a risk of reoffending or prospects of rehabilitation”, “engages an unjustified form of moral and social accounting”, and “is harmful to and may be re-traumatising for victims”.
Two members of the Council gave dissenting views, saying good character evidence “ensures that the punishment fits not only the crime but also the person who committed it”, and rejecting the assertion that it was “synonymous with social privilege”.
NSW Attorney-General Michael Daley said: “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’.
“We know some offenders try to use their reputations and social standing to commit serious crimes and then minimise their culpability.
“No offender should be able to rely on the fact they are of ‘good character’ to mitigate the consequences of their criminal behaviour.”
NSW is the first state to completely abolish good character considerations, all though all except Western Australia have exceptions for child sex offences, and Queensland and Tasmania have removed good character references for all sexual offences.
Header image: NSW Premier Chris Minns with Mr Daley (Facebook).
