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Advocates for survivors of child sexual 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 who are both survivors of child sexual 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 associated petition amassing over 4,000 signatures before it closed.

Greens MP, Abigail 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 sexual 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, authority 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 sexual 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 assistance 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 who commit child-related sexual 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 assistance 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 sexual abuse cases, largely due to concerns that the rule’s current application leaves a ‘loop-hole’ 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 circumstances of the relevant case.

For example, in O’Brien v R [2013] NSWCCA 197, the court held that the sentencing judge should not have taken into account the applicant’s good character and lack of previous convictions as a mitigating factor. This was due to how the applicant’s prior good character and position as a responsible member of the community appeared to have been of assistance 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 should not have applied section 21A(5A). It was ultimately found that the offender’s prior good character could not be said to have assisted him committing the offences, even though the offender’s relationship 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 sexual assault offences (even where section 21A(5A) does not apply) have been held to be in the classes 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 those 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 should generally include a statement that the writer is aware of the offender’s charges, their relationship with the offender, and their opinion of the offender’s character, including anything which may be relevant to the charges.

They should generally be obtained from people whom 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 potential sentence and is considered alongside any aggravating factors which may be present in determining the appropriate sentence for an offence.

Published on 13/09/2023

AUTHOR Poppy Morandin

Poppy Morandin is the managing law clerk and an integral part of the team of criminal lawyers at Criminal Defence Lawyers Australia . She's also a part of CDLA's content article production team. Poppy is passionate about law reform and criminal justice.

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