As the NSW government moves to prevent convicted offenders from using “good character” as a mitigating factor in sentencing, the reform has divided the legal profession – earning praise from some while raising concerns among others.
At the start of the month, the Minns Labor government unveiled its plans to legislate against offenders from relying on evidence of their “good character” during sentencing.
The reform follows recommendations from the NSW Sentencing Council’s review of “good character” as a mitigating factor in sentencing, commissioned by the Attorney-General in 2024.
Under the proposed changes, the Crimes (Sentencing Procedure) Act 1999 will be amended to remove “good character” as a factor in sentencing for all offences and repeal the “special rule” that currently bars child sexual offenders from using evidence of good character or prior convictions when it played a role in their offence.
Attorney-General Michael Daley explained how the reform is aimed at protecting victim-survivors from the trauma of hearing their offender described as a “good person” in court, warning that some offenders exploit their reputation to evade full accountability.
“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’,” A-G Daley said.
“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.”
Survivor advocacy groups have welcomed the reform, with Harrison James, co-founder of the campaign Your Reference Ain’t Relevant, calling it a historic shift in sentencing and describing the moment as “a dream come true” after years of relentless advocacy.
“This reform ensures survivors’ lived trauma outweighs an offender’s social reputation, and I thank the Attorney-General and NSW government for listening and acting on our campaign,” James said.
“This is one of the most monumental shifts in how the courts approach sentencing. After years of relentless advocacy, seeing it become reality is a dream come true.”
However, not all legal practitioners share this enthusiasm.
Ahmad Faraj, principal and senior lawyer at Faraj Defence Lawyers, raised concerns about the proposed abolition of good character evidence in NSW sentencing, warning that the change could have “a negative impact”.
The government has defended the reform as a measure to protect victim-survivors from hearing offenders described as “good people” in court. However, Faraj cautioned that such perspectives overlook the purpose of good character evidence.
“One of the comments made was ‘a victim-survivor shouldn’t have to sit in court and hear that the person who assaulted them is a good bloke’,” Faraj said.
“Comments like this, in my personal view, are taken out of context for what good character evidence is supposed to achieve at sentencing.
“Good character evidence is brought forward to show an offender at sentencing in a different light, not because it is for the benefit strictly, but to show the court who that person is outside of the offence they are charged for.”
Faraj emphasised that no one is perfect, stressing the importance of courts seeing the full picture of an offender’s life – including both their mistakes and the positive contributions they have made to society – when determining a sentence.
“As human beings, we are not perfect in the slightest. We make mistakes, we react in the wrong way sometimes and do things we wouldn’t normally do,” Faraj said.
“In my view, it is very important for the court to know this about someone they are about to sentence, as it forms part of the ‘full picture’ as to why someone did whatever they are alleged to have done.
“Some people being sentenced, run charities, take care of people in their community and also have immense positive impacts on society; this, in my view, is relevant.”
The Minns government, Faraj argued, has overlooked that good people can sometimes make poor choices, and a single lapse in judgement shouldn’t prevent a sentencing judge from seeing the positive aspects of their character.
“What the Minns government, in my view, has failed to determine is that, as humans, good people sometimes make bad decisions, and just because of that lapse in judgement, it should not be the case that they are barred from exposing the good in them to the sentencing judge,” Faraj said.
Angela Cooney, national practice director at Armstrong Legal, clarified the scope of the reform, explaining that it applies only to sentencing and does not affect trial proceedings.
“The proposed bill only seeks to change the law in relation to good character at sentencing. It does not prevent an accused person from relying on good character at trial (where the jury are permitted to hear good character evidence and consider such as part of their deliberations as to whether the accused is guilty or innocent),” Cooney said.
Instead, she explained, courts can take into account evidence related to any other relevant factor in sentencing, such as an offender’s risk of reoffending, remorse, acceptance of responsibility, rehabilitation efforts, and connections to the community.
In this context, Cooney explained that while the proposed changes are unlikely to dramatically alter sentencing outcomes, they better align with community expectations by making clear that simply being a “good person” does not, by itself, reduce the sentence an offender should face.
“In our view, the proposed bill is unlikely to significantly impact sentencing practices. It would be unusual for ‘good character’ in and of itself to significantly impact on the sentence an offender was given, absent it being related to or tied to one of the other factors mentioned above,” Cooney said.
“It does, however, better reflect community attitudes and clarify sentencing principles to reflect that ‘being a good person’ does not in and of itself mitigate a sentence that someone should receive.”
