Queensland’s incoming restrictions on good character references for sex offenders were branded “performative legislation”, with critics finding it to be meaningless, misdirected and at risk of undermining the public’s confidence in the administration of justice.
Under new legislation introduced by Queensland’s Attorney-General, Deb Frecklington, the use of good character references in the sentencing of sex offenders will be treated only as a mitigating factor where it is relevant to rehabilitation or likelihood of reoffending.
In a May statement, Frecklington said the restrictions – due to commence in November – would send a “clear message” that the Queensland government have put victims of sexual crimes first.
“No one wants to hear that a rapist is an all-round great person, a trustworthy mate, or that they’re respected in the community – especially not their victim, bravely sitting in court,” she said.
Bill Doogue, director of Doogue + George Criminal Lawyers, said it was “another example of performative legislation”.
“The reality is that character evidence has an incredibly important and legitimate role in sentencing, because it gives context for the judge who has that unenviable task of sentencing somebody for a horrible crime, and they have to decide where it fits,” Doogue said.
The legislation would effectively “lump everybody together”, whether they have spent their lives volunteering and helping the community, or if they have “never done anything for anybody else”. Without those distinctions, Doogue said, judges “can’t sentence appropriately”.
“The legislation is just a simplistic reaction to people not liking hearing about an offender’s personal circumstances,” he added.
“It’s not just in sexual offending; it’s in every offending. People will walk out of court and go, ‘oh, why did they say they had volunteered when they’ve stolen money off our firm’, but it just has to be done. If you don’t do it, you lose the nuance of what courts are about.”
Doogue likened the good character legislation to Victoria’s new machete laws, which were introduced despite there being “dozens of laws” that already covered offences related to weapons.
“This sort of stuff is about performing for the electorate; it’s not about making change that helps the system work.
“If you want to stop sex offending, put money in at the other end and educate children about better consent and sexual education. Don’t do it after they’ve gone off the cliff then try and work out ways that you can ignore their personal circumstances,” Doogue said.
Elbob & Stephenson Lawyers’ co-founder and director, Joseph Stephenson, said good character references for sex offenders were already given “much less weight” in jurisdictions like Victoria, NSW, and – prior to Frecklington’s legislation – Queensland.
He explained it was because sex offenders typically come before the courts with no prior history, as opposed to assault charges that may follow crimes on the lower end of the scale, such as possession of drugs, fraud or dishonesty in relatively small amounts.
While the firm has always provided good character references, Stephenson said it would not be relied on too heavily unless it could “push” other submissions about the client further, like whether they volunteer or run a small business in the local community.
“The bigger impact on sentencing is always going to be the rehabilitation – why has the offending occurred, and what are we doing to address that. It’s where the treatment and rehabilitation will become the paramount consideration,” Stephenson said.
In contrast with the use of good character references in other types of offending, Stephenson said offenders of sexual crimes should not be deprived of the submissions because they lack a prior history.
“My view has always been to treat the offending as [it] is. If there is no history, then there is no history. They are entitled to rely on their previous good character. I don’t see why someone should … not be afforded the same kind of weight in those submissions,” he added.
Doogue said he was concerned people will have bought into the performative legislation – particularly as it was delivered by an Attorney-General – and believe it will mean offenders will get more time, “and that’s just not what’s going to happen, and nor should it”.
In the past, Doogue said the traditional role of Attorney-General would be to explain a court’s decision and defend the judges.
“In the last decade or two, that’s disappeared, and the courts no longer have a fierce advocate for them. The Attorney-General is likely to stand up and say ‘that was a really bad decision’ without knowing all of the circumstances of it.
“It undermines the public confidence in the system when the Attorney-General should be standing up and saying the system works well,” Doogue said.
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
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