The ‘good character’ mitigating factor has been a longstanding consideration in sentencing hearings in New South Wales. Rooted in common law and statute, it includes considerations of the offender’s prior record, general reputation, and their positive contributions to society[1]. These are essentially subjective views of family members and close friends of the offender. However, this practice has been increasingly criticised as biased, and harmful to victims.

In 2024, the New South Wales Sentencing Council was commissioned to review the usage of good character references after a campaign by ‘Your Reference Ain’t Relevant’, a movement by child sexual abuse survivor advocates Harrison James and Jarad Grice, called for change[2]. Currently, there exists one sole loophole to character references, known as the ‘special rule’, reserved for offences relating to child sexual abuse. Following the sentencing council’s recommendations, New South Wales is set to become the first jurisdiction in the country to eradicate the use of good character references for all offences, and repeal the special rule for good character, through a bill to be introduced in early February.

Other mitigating factors, such as the prospects of rehabilitation, likelihood of re-offending, and lack of previous convictions, may still be considered and used with the judge’s discretion. The removal of character references would also displace a 2001 High Court decision in Ryan v The Queen[3], which allowed leniency to their usage, and demanded that the references must be given some weight in sentencing. This commentary will discuss the benefits and limitations to the striking of good character references, and its implications on New South Wales legal system.

I MAINTAINING RELEVANCE AND THE PROTECTION OF VICTIMS

“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’”. Attorney-General Michael Daley’s words encapsulate the main aim of the change: to protect victims as they pass through the legal process of receiving justice through sentencing procedures. The references may add a re-traumatizing aspect to the victim’s legal process, and could possibly encourage victim blaming where family and close friends are involved, and so their removal is crucial to avoid the undermining and harm of victims.[4]

The majority of the council also believed that the character references were irrelevant in aiding the courts with sentencing, rather they were based on concepts of uncertainty that could not aid in supporting other mitigating factors.[5] Courts have already previously identified features that could support that a finding of good character may be given less weight due to irrelevancy, including but not limited to: the offence not falling under an isolated act[6], deliberate and careful planning of the offence[7], or the offence involving an abuse of position or breach of trust such as white collar and employment crime.[8] Such features make it clear that character references are of limited relevance in many circumstances, and so, judicial discretion should be exercised for objective evidence, rather than subjective character testimonials.

It was also argued that references of good character were upholding discriminatory standards and bias. This is due to offenders of higher social standing having more access to these references. Offenders with large professional networks, or the privilege of education and community status, are more likely to present persuasive and charismatic references.[9] The same cannot be said for offenders that may have come from low socio-economic backgrounds, whose references may be non existent due to lack of resources. For the law to maintain its fairness and function, it must only take into account what is relevant and fair. Allowing a system where only a privileged sect of people can participate in a legal process would bring unfairness into the judicial process, re-affirming the need for the strike.

II STANDARDISATION AND MISJUDGMENTS 

On the other hand, the proposed strike raises legitimate legal concerns. Although the courts still maintain the usage of other mitigating factors seen in s21A of the Crimes Sentencing Procedure Act[10], they cannot fully replace the contextual role that has long been played by the references of good character. When the character references are struck out, there is a risk of the standardisation of offenders in the legal system through uniform sentencing. Good character has historically been a way for courts to help tailor proportionate punishments, and make clear distinctions between each offender. Without it, the strike risks undermining the judicial process by losing a valuable tool for tailoring sentencing, and differentiating between offenders who have generally lived law abiding lives, and those who have had consistent offending patterns.

This concern becomes largely pressing with the sentencing of summary offences, such as minor theft. In such cases, there is usually minimal or indirect considerations towards the victim, and no significant harm to society done. Removing the ability to judge an offender’s good character against these types of offences may produce unnecessarily harsh and misjudged sentencing outcomes that are dis-proportionate.[11] Judicial discretion depends on leniency and context. To completely strike out the precedent set in Ryan v The Queen, and to amend the recognition of an offender’s prior good character could constrict the space for judges to express mercy to individual circumstances. It is true that other mitigating factors still do exist and can be given more weight, however they tend to focus more on the post-offending conduct, rather than the offender’s prior law abiding activity.

III BALANCING FAIRNESS AND CONTEXT

It is important to achieve a balance that distinguishes between irrelevant moral and ethical references, and actual, objective evidence of remorse and reform from the offender. Judges should still continue to seek proof for rehabilitation and behavioral changes that speak directly to risk and proportionality. In actuality, the strike should emphasize that the removal of good character references does not prohibit the consideration of individual circumstances, rather it strikes out unreliable testimonials from friends and family and works towards a fairer and more structured judicial system in New South Wales. Compassion must not be erased in the courts, it should simply be restructured through fairer, more objective standards.

IV FOOTNOTES

[1] NSW Sentencing Council, Good Character at Sentencing (Report, July 2025) 16.

[2]Ibid 6. 

[3] Ryan v The Queen  [2001] HCA 21.

[4] NSW Sentencing Council, Good Character at Sentencing, 36.

[5] Ibid 29.

[6] R v Sidlow (1908) 1 Cr App R 28, 29.

[7] Ryan v The Queen [2001] HCA 21, [175].

[8] R v Rivikin [2004] NSWCCA 7.

[9] NSW Sentencing Council, Good Character at Sentencing, 41.

[10] Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A.

[11] NSW Sentencing Council, Good Character at Sentencing  58, 59.