The Attorney General recently announced proposed reforms to scrap good character references as a mitigating factor in sentencing. The proposal is directed at the concern that people with professional standing or strong community support may be perceived as receiving more favourable treatment before the courts.
The bill would amend the Sentencing Act 1995 (WA) so that good character references could no longer be relied on in mitigation for any offence. The Attorney General has claimed that the reform would not prevent courts from considering other relevant matters, including rehabilitation, the absence of prior convictions, or personal circumstances.
More than a “good bloke defence”
Good character evidence is often misunderstood as a “good bloke defence”, but that shorthand does not fully capture how the material can operate in sentencing. Properly prepared, a character reference often speaks to matters beyond popularity or professional reputation. It can provide information about an offender’s history, honesty, work ethic, community support, risk of reoffending and prospects of rehabilitation. In some matters, particularly those involving young people or vulnerable communities, a reference from a relevant community member may help show that the person has accepted responsibility and taken meaningful steps to repair harm.
For example, where a young person has been convicted of criminal damage by fire, they may elect to undertake volunteer work with a fire station, and a reference from someone supervising that work gives the court concrete evidence of insight, accountability and rehabilitation. That is not simply an appeal to sympathy. It may assist the court to understand whether the person has engaged with the consequences of their conduct and what supports are in place to reduce the risk of further offending.
Further, while pre-sentence reports can provide important context, they are not always available, particularly in summary adult jurisdictions. In those circumstances, a carefully framed character reference may be one of the few practical ways to place relevant rehabilitative information before the court.
Preserving judicial discretion
A sentencing judge is required by law to consider the material before the court, determine what weight, if any, should be given to it, and arrive at a sentence that is appropriate in all the circumstances. That task involves assessing aggravating, mitigating and neutral information. A sentence can only be properly tailored when the judicial officer has access to the relevant material and is able to decide how much significance it should carry (if any). Preventing a court from considering information that may, in some circumstances, be relevant and persuasive risks narrowing the sentencing exercise in a way that may not assist fairness or consistency.
Judicial officers are well versed in distinguishing between references that are useful and those that add little. The courts already recognise that evidence of good character will have limited or marginal relevance in many cases, particularly where general deterrence and denunciation are a factor (See Ryan v The Queen [2001] HCA 21 at [33]-[36], [149]).
Courts are also alert to the reality that, in some offending, a person’s reputation or standing may have enabled access to victims or discouraged reporting. This is particularly relevant in cases involving serial sexual offences against children, where the offender’s apparent good character may itself form part of the context of the offending.
The difficulty with a blanket restriction is that not all cases are alike. In a mid-range violence matter, such as an assault occasioning bodily harm, the sentencing outcome may depend on a range of matters including whether the conduct was spontaneous, planned or reactive, whether the offender has taken steps to address anger or alcohol use, and what the likelihood is of similar conduct occurring again. In that context, relevant evidence about the person’s behaviour since the offence, support networks, and efforts at rehabilitation may assist the court.
The need for evidence-based reform
A further concern is that the proposal has been developed without the benefit of consultation from the Law Society of Western Australia. The reform appears to have arisen in the context of a highly publicised case in which several separate issues may have become linked: the use of character references generally, the use of references from government employees, and the particular circumstances in which references are provided on official letterhead or in work-adjacent contexts.
Each of those issues deserves careful consideration, but they may not require the same legislative response. A more targeted approach could address the source of public concern while avoiding unintended consequences across the broader sentencing system.
It is understandable that the WA Government would seek to maintain public confidence in sentencing. That confidence is important, particularly where the community is concerned that status or reputation may influence outcomes. However, any reform in this area should ideally be guided by evidence and consultation, especially as this reform could have grave effects on justice for vulnerable communities.
Preserving judicial discretion, while addressing inappropriate or misleading uses of character material, may provide a fairer and more balanced path forward.
Editorial note: the Chief Justice Peter Quinlan has recently been interviewed on the proposals by ABC News.
