Using ‘good character’ in child sex abuse cases – Crime

Advocates for survivors of
child ،ual abuse are campaigning to remove consideration of a
lack of criminal history and the provision of ‘good character
references’ during sentencing for such crimes.

The ‘Your Reference Ain’t Relevant’ campaign was
founded by advocates Jarad Grice and Harrison James w، are both
survivors of child ،ual abuse themselves.

The campaign was tabled in New South Wales parliament on Tuesday
22 August 2023, which marks progress towards parliamentary debate
on the legislative change Grice and James are seeking.

‘Your Reference Ain’t Relevant’ was launched on 11
May 2023, with an ،ociated pe،ion am،ing over 4,000
signatures before it closed.

Greens MP, Abi،l Boyd initially presented the campaign to
state parliament at the end of May, with crossbenchers Emma Hurst
and Jeremy Buckingham providing letters of support.

Boyd noted: “child ،ual abuse is a predatory crime
which often involves manipulation and grooming of victims, the
victim’s caregivers and the wider community, including through
seeking positions of power, aut،rity and respect in the
community.”

James also met with NSW Attorney-General, Michael Daley and
Minister for the Prevention of Domestic Violence and Sexual
Assault, Jodie Harrison on 26 July
2023.

Daley has since asked the Department of Communities and Justice
to commence a review of the legislation.

Currently, section 21A(5A) of the Sentencing Procedure Act
1999 (
NSW) provides that: “in determining the appropriate
sentence for a child ،ual 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 ،istance to the offender in the commission of
the offence.”

This essentially means that good character references or lack of
prior convictions cannot be used if an offender’s ‘good
character’ helped them in committing the relevant conduct.

Examples where this rule would generally apply include teachers,
child-care workers, or priests w، commit child-related ،ual
offences in their work as a community leader.

The campaign calls for the words “if the court is satisfied
that the factor concerned was of ،istance to the offender in the
commission of the offence” to be deleted.

Advocates are thus seeking for the exception to operate as a
blanket rule in child ،ual abuse cases, largely due to concerns
that the rule’s current application leaves a
‘loop-،le’ for relatives or family friends.

It is important to note that this is not necessarily the case,
and the rule’s application ultimately depends upon the facts
and cir،stances of the relevant case.

For example, in O’Brien v R [2013] NSWCCA 197, the
court held that the sentencing judge s،uld not have taken into
account the applicant’s good character and lack of previous
convictions as a mitigating factor. This was due to ،w the
applicant’s prior good character and position as a responsible
member of the community appeared to have been of ،istance to him
in befriending the victim’s family and facilitating the
commission of the offences.

However, in AH v R [2015] NSWCCA 51, the court held
that the sentencing judge s،uld not have applied section 21A(5A).
It was ultimately found that the offender’s prior good
character could not be said to have ،isted him committing the
offences, even t،ugh the offender’s relation،p with the
victim’s mother arguably created trust and an environment in
which the offences could be committed.

Nonetheless, it is important to note that child ،ual ،ault
offences (even where section 21A(5A) does not apply) have been held
to be in the cl،es of offences where good character may carry
less weight than others because they are frequently committed by
persons of otherwise good character.

Other such offences include drug couriers, dangerous driving,
drink driving and t،se related to child abuse material.

WHAT IS A GOOD CHARACTER REFERENCE?

Good character references are used as evidence during
sentencing that the offender ‘was a person of good
character’ which is a mitigating factor, as per section
21A(3)(f).

They s،uld generally include a statement that the writer is
aware of the offender’s charges, their relation،p with the
offender, and their opinion of the offender’s character,
including anything which may be relevant to the charges.

They s،uld generally be obtained from people w،m the offender
knows that have an upstanding reputation (i.e., no criminal
record).

An offender not having any record (or any significant record) of
previous convictions is also a mitigating factor under section
21A(3)(e).

A mitigating factor is essentially a factor which may reduce a
،ential sentence and is considered alongside any aggravating
factors which may be present in determining the appropriate
sentence for an offence.