Two young men are on a campaign to prohibit those who plead guilty or are found guilty of child sexual offences from using good character references during their sentencing hearings, which is the time when the magistrate or judge decides a person's penalty.
Campaign leads to review in New South Wales
Earlier this year, Harrison James and Jarad Grice spearheaded the campaign in New South Wales, arguing that those who are guilty of offences such as sexual assault, sexual touching and other sexual acts against children should not have the benefit of evidence suggesting prior or otherwise good character because of the inexcusable nature of the offending conduct.
The campaign has had some success, drawing attention to the topic and leading New South Wales Attorney General Michael Daley to request a review of current laws which allow the use of character references in sentencing hearings for child sexual offences unless the person's good character assisted them in being able to commit the offence.
Now the pair, who are survivors of child sexual abuse themselves, have now moved on to the nation's capital, pushing for a similar review of its laws.
‘Your Reference Ain't Relevant'
Their campaign is called “Your Reference Ain't Relevant” and is essentially based on the idea that ‘child sexual offences' and the notion of ‘good character' are necessarily oxymorons, and that magistrates and judges should on that basis be prohibited from considering positive testimonials when determining the appropriate penalty for a child sexual offender.
Many commenting on the campaign's social media posts go as far as to suggest that those who provide such references are enabling, excusing or even complicit in the offences themselves.
Character references are relevant
But those who are familiar with the operation of the criminal justice system point out that a blanket prohibition on allowing a person to put favourable material before a court undermines the fundamental democratic principle of procedural fairness, which includes that a person should have the opportunity to put matters before the court.
This, lawyers argue, has the potential to lead to unjust outcomes and may set a dangerous precedent whereby people who are before the courts are judged by an increasingly restricted number of considerations.
Lawyers further explain that information regarding good character is just one of many sentencing considerations before a court, and that members of the judiciary are smart enough to determine the weight (if any) to be placed on any such material.
Character references as well as letters of apology to the court are indeed important in so far as they provide magistrates and judges with an insight into the person who is before them, their attitude towards the offending, their prospects of rehabilitation, any positive acts before and since and a whole host of matters which the court should in fairness be allowed to consider before deciding a person's fate.
The law on good character references for child sexual offences in NSW
It is important to note that in 2008, an Act of Parliament came into effect which amended a number of pieces of legislation ostensibly to reflect the seriousness with which sexual offences are considered in the community.
One of the changes involved the insertion of subsections (5A), (5B) and (6) into section 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW), which is the section that sets out the aggravating factors (those which can make the offending more serious) and mitigation factors (those which can lead to a more favourable outcome for the defendant) that a court can consider during the sentencing process.
Section 21A(5A) is headed ‘Special rules for child sexual offences' and 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 means character references can be used for child sex offences unless the court believes a person's good character, including his or her standing or position, helped them to commit the crime.
Section 21A(5B) makes clear the preceding provision applies regardless of any other law.
Section 21A(6) defines a ‘child sexual offence' broadly as:
(a) an offence against section 61I, 61J, 61JA, 61K, 61KC, 61KD, 61KE, 61KF or 66F of the Crimes Act 1900 where the person against whom the offence was committed was then under the age of 16 years, or
(b) an offence against section 66A, 66B, 66C, 66D, 66DA, 66DB, 66DC, 66DD, 66DE, 66DF, 66EA, 66EB, 66EC, 91D, 91E, 91F, 91G or 91H of the Crimes Act 1900 , or
(c) an offence against section 80D or 80E of the Crimes Act 1900 where the person against whom the offence was committed was then under the age of 16 years, or
(d) an offence against section 91J, 91K or 91L of the Crimes Act 1900 where the person who was being observed or filmed as referred to in those sections was then under the age of 16 years, or
(d1) an offence against a provision of the Crimes Act 1900 set out in Column 1 of Schedule 1A to that Act where the person against whom the offence was committed was then under the age of 16 years, or
(e) an offence of attempting, or of conspiracy or incitement, to commit an offence referred to in any of the above paragraphs, or
(f) an offence under a previous enactment that is substantially similar to an offence referred to in any of the above paragraphs.
As stated, the New South Wales Attorney General is currently reviewing these provisions primarily with a view to determining whether section 21A(5A) should be broadened.
Other jurisdictions
Tasmania has very similar laws to those in force in New South Wales, and the issue of character references came under the microscope last year – at the time John Wayne Milwood was sentenced. He pleaded guilty to child sexual offences mid-trial in 2016 and was sentenced to four years in prison.
His victim, known only by the pseudonym of ZAB, was abused over a period of six years in the 1980s. He went on to commence civil proceedings against Mr Milwood and was awarded more than $5 million in damages. He subsequently also campaigned to prohibit those who plead guilty to child sexual offences from using evidence of good character, including written character references and court testimony.
ACT
The current ACT laws are also similar to those in NSW and Tasmania. Some paedophiles can utilise good character references, but not all. For example, teachers and religious leaders cannot use them, but perpetrators who didn't use their ‘good standing' within the community to gain access to their victims can use these references, for example, family members or neighbours.
Victoria
In Victoria earlier this year, victims of crime were outraged when it was discovered that convicted paedophile Jeff “Joffa” Corfe had used two “old references” in court – and both referees had not known they were used.
The controversy was sparked because while Corfe admitted to sexual acts with a 14-year old teenage boy, Victorian County Court Judge Gerard Mullaly gave him a suspended 12-month sentence and noting his “good character” as a key factor.
Victims groups were understandably outraged that the references had not undergone more rigorous checks, pointing out that victim impact statements are subject to a number of stipulations.
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