NSW Pioneers Legal Reform: Removing 'Good Character' from Sentencing Considerations

In a landmark legal reform, New South Wales is poised to become the first Australian state to legislate the removal of 'good character' as a mitigating factor during sentencing hearings for all criminal offences. This significant policy shift, announced by the state government, follows a comprehensive review by the NSW Sentencing Council and represents a direct response to advocacy from survivors of sexual abuse. The change aims to recalibrate the scales of justice, ensuring that an offender's social reputation does not outweigh the trauma experienced by victims. While hailed by many as a progressive step towards a more equitable legal system, the reform has sparked debate about its potential impact on defendants' rights and the fundamental principles of sentencing discretion.

The Rationale for Reform: Addressing Systemic Bias and Trauma

The decision to remove good character considerations stems from a detailed review led by retired Supreme Court judge Peter McClellan. The review concluded that the concept of 'good character' is fundamentally flawed. It described the principle as "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." Crucially, the review highlighted the re-traumatising effect on victims, noting that such evidence can encourage victim-blaming by suggesting the crime was an aberration from the offender's otherwise upstanding life.

This perspective is strongly supported by survivor advocacy groups. Your Reference Ain’t Relevant, a campaign founded by survivors, has been instrumental in pushing for this change. Co-founder Harrison James, a survivor of child sexual abuse, stated that the reforms would ensure "survivors’ lived trauma outweighs an offender’s social reputation," calling it "one of the most monumental shifts in how the courts approach sentencing." Anonymous submissions to the review echoed this, with one survivor writing that hearing a perpetrator described as a 'good person' was "deeply retraumatising" and sent a message that his reputation mattered more than the harm caused.

What the Legislative Change Entails

The proposed legislation, to be introduced by the NSW government, will formally excise 'good character' from the list of factors judges can consider when determining a sentence. Under the current system, an offender's prior record, general reputation, and positive contributions to society could be presented as evidence to potentially reduce their sentence. The new law will end this practice for all crimes.

It is important to clarify what the reform does not do. Judges will retain the ability to consider evidence directly related to an offender's prospects of rehabilitation and likelihood of reoffending. Furthermore, a lack of previous convictions

Broader Context and National Precedents

This reform is not an isolated development but part of a broader national trend. The principle of considering good character is centuries old and is currently used by all Australian federal, state, and territory authorities. However, the landscape began shifting following the 2017 Royal Commission into Institutional Responses to Child Sexual Abuse, which endorsed a 'special rule' for child sexual offences. Most jurisdictions, except Western Australia, now have variations of this rule, which prevents offenders from using good character references if the court finds those factors helped them commit the crime.

NSW itself introduced this special rule in 2008, but its application has been criticized as inconsistent. Other states have moved further: Tasmania removed good character considerations for all sexual offences in 2016, Queensland followed suit in 2023, and the Australian Capital Territory is moving to make character references irrelevant in all sentencing for child sexual offences. NSW's new legislation goes beyond these by applying the removal to all criminal offences, making it the most comprehensive reform in the country.

Controversy and Dissenting Voices

While the reform has significant support, it is not without controversy. The NSW Sentencing Council's review was not unanimous; two of its sixteen members, barristers Felicity Graham and Richard Wilson SC, dissented. They argued that removing the principle for all offences was "reactive to populist demands" for harsher sentencing. They defended good character as a factor that can encourage rehabilitation, particularly in cases where an offence was committed under "exceptional or pressured circumstances or whilst labouring under a momentary lapse in judgement."

Legal and community groups have also expressed concerns. The Aboriginal Legal Service (ALS) advised against the change, recommending instead that the government improve victim-survivor experiences through procedural changes and support systems that do not infringe "on the rights of the defendant or the judicial discretion of sentencing courts." The ALS emphasized the need for trauma-informed and culturally safe processes, particularly for Aboriginal victim-survivors, without altering fundamental sentencing principles.

Addressing Social Disadvantage

A key argument underpinning the reform is that the 'good character' principle perpetuates social inequality. Submissions to the review argued that individuals who are well-connected, wealthy, or from privileged backgrounds have greater access to impressive character references from influential people. The Community Restorative Centre submission explicitly noted that "it is generally white, middle-class men who most benefit from prior good character considerations." By removing this factor, the law aims to create a more level playing field, where sentencing is based more on the facts of the crime and the offender's direct prospects for reform, rather than their social capital or reputation.

Conclusion: A Paradigm Shift in Australian Justice

The removal of 'good character' from sentencing considerations in New South Wales marks a profound shift in legal philosophy. It prioritizes the lived experience of victims and attempts to dismantle a mechanism seen as favoring the socially privileged. The reform acknowledges that a person's public contributions or standing should not mitigate the harm they have caused privately. As this legislation moves forward, it will be closely watched by other jurisdictions across Australia and potentially internationally. Its implementation will test whether the goals of reducing victim trauma and promoting equity can be achieved without unduly constraining judicial discretion or defendants' rights. This change represents a significant moment where the law seeks to align more closely with contemporary understandings of justice, trauma, and social equality.