Offenders convicted of any crime will no longer be able to rely on glowing character references during sentencing under changes being introduced in New South Wales, in a move supported by survivors of sexual abuse but which others say could limit defendants’ rights.
On Wednesday, the state government will become the first nationwide to introduce legislation to remove “good character” from being considered at sentencing hearings, when judges hear about someone’s prior record, general reputation and any positive contributions to society as mitigating factors.
It follows a recommendation from a NSW sentencing council review released on Sunday, which was commissioned in April 2024 after a campaign by Your Reference Ain’t Relevant to remove good character references during sentencing for child sex offenders.
Under NSW’s current laws, child sex offenders are subject to a “special rule”, meaning they cannot rely on good character or a lack of previous convictions during sentencing if the court decides those factors helped them commit the offence.
The majority of the 16-person sentencing council, led by the retired supreme court judge Peter McClellan, called for the abolition of good character considerations for all offences, although two members provided dissenting opinions.
The review said 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, and engages an unjustified form of moral and social accounting”, adding it can have a re-traumatising effect and encourage victim blaming.
Your Reference Ain’t Relevant cofounder Harrison James, a survivor of child sexual abuse, said the reforms would ensure “survivors’ lived trauma outweighs an offender’s social reputation”.
“This is one of the most monumental shifts in how the courts approach sentencing,” he said.
Under the changes, judges will still be able to consider evidence about someone’s prospects of rehabilitation and likelihood of reoffending, as well as a lack of previous convictions, but the latter will no longer be used to demonstrate someone is of “good character”.
The NSW attorney general, Michael Daley, said offenders will not be able to “use their reputations and social standing to commit serious crimes and then minimise their culpability”.
“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’,” he said. The discussion of good character during a trial itself to establish an alleged offender’s credibility or the likelihood they committed an offence will remain.
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Many survivors of sexual abuse wrote to the sentencing council in support of Your Reference Ain’t Relevant. One anonymous submission said that hearing the “good character” of a parent who had perpetrated sexual abuse referenced during the legal process was “deeply retraumatising”.
“It sent the message that his reputation mattered more than the harm he caused me and my sisters he raped,” the submission said.
The government said the reform also responds to concerns that good character evidence perpetuates social disadvantage. Submissions to the review said people who are well-connected, wealthy people or those from a privileged background had greater access to good character references. The Community Restorative Centre said “it is generally white, middle-class men who most benefit from prior good character considerations”.
But others also advised against a change. The Aboriginal Legal Service recommended the government instead take steps to improve victim-survivors’ experience through procedural changes or support systems that don’t infringe “on the rights of the defendant or the judicial discretion of sentencing courts”.
“We recognise the need to improve the experience of victim survivors in the court system, noting that processes are frequently not trauma-informed or culturally safe and can be distressing and retraumatising for many victim-survivors, particularly Aboriginal victim-survivors,” the legal service wrote.
Two members of the sentencing council, barristers Felicity Graham and Richard Wilson SC, said they supported giving the court discretion to give good character no weight, but said removing the principle for all criminal offences was “reactive to populist demands for … a more severe approach to sentencing”.
They rejected the idea good character was “synonymous with social privilege”, saying it encouraged rehabilitation, including in exceptional circumstances.
“A person may have committed an offence in exceptional or pressured circumstances or whilst labouring under a momentary lapse in judgement,” they said.
All federal, state and territory authorities currently consider good character, a centuries-old legal principle, during sentencing, although all apart from Western Australia have variations on the “special rule” for child sexual offences, which was endorsed in 2017 by the royal commission into institutional responses to child sexual abuse.
The ACT is moving to make character references irrelevant in all sentencing for sexual offences against children. Last year, Queensland legislated to remove good character offences for all sexual offences, following Tasmania in 2016.
NSW introduced the “special rule” after a 2008 review by the sentencing council, but advocates have raised concerns about its efficacy, with Sunday’s review acknowledging concerns it was “difficult to apply, and when applied, it is often done inconsistently or problematically”.
In 2023, Paul Frost, a Sydney swim coach convicted of grooming and sexually abusing 11 young students, received references from his mother, Lola Frost, and restaurateur John Fink, who described him as hard working, devoted and a “champion and a protector of young people and children of all ages”.
Speaking outside court, Harrison James said he hoped Frost’s sentence – 24 years in prison before being eligible for parole – would set a precedent for others convicted of similar crimes.
Additional reporting by Jordyn Beazley
• In Australia, children, young adults, parents and teachers can contact the Kids Helpline on 1800 55 1800; adult survivors can seek help at Blue Knot Foundation on 1300 657 380. In the UK, the NSPCC offers support to children on 0800 1111, and adults concerned about a child on 0808 800 5000. The National Association for People Abused in Childhood (Napac) offers support for adult survivors on 0808 801 0331. In the US, call or text the Childhelp abuse hotline on 800-422-4453. Other sources of help can be found at Child Helpline International
