EVIDENCE OF PRIOR PRO-SOCIAL CONDUCT OF AN OFFENDER IS RELEVANT TO THE SENTENCING EXERCISE
The ACT Bar Association is aware of calls for ACT sentencing laws to be amended to prohibit a court from reducing the severity of a sentence it would otherwise have imposed by reference to evidence of the “good character” of an offender being sentenced for sexual offences against children.
The term “good character” is not defined in ACT legislation. It has evolved as a form of legal shorthand, used in the ACT and elsewhere, to refer to evidence that an offender, aside from the conduct for which they are to be sentenced, has previously engaged in some worthwhile, pro-social activities and/or is or was well-regarded by members of their community. A statement that an offender is or was of “good character” is generally not intended by those who deploy it to deny or discount the gravity of the offending for which the person is to be sentenced. In numerous cases, child sex offenders have received strong deterrent sentences notwithstanding that they were asserted and/or found to have been of “good character” or “otherwise of good character”.
Nevertheless, the Bar Association understands that it may be distressing and confronting for victims of child sex offences to hear an offender, in a sentencing process, described as being of “good character”. It may be argued that a person who commits such offences cannot be of “good character”. It may be that there is a problem of language which can be addressed by legislative amendment, as has occurred in other contexts.
In the context of sexual offences against children, ACT sentencing law already prohibits a court from reducing the severity of a sentence it would otherwise have imposed on an offender based on evidence of “good character” of the offender, if that “good character” was a factor which enabled the offender to commit the offence in the first place. This is an appropriate and measured provision.
To the extent, however, that it is proposed that courts be precluded altogether from receiving evidence that a person being sentenced for child sex offences has previously engaged in worthwhile, pro-social activities, and/or was well-regarded in their community, this reform is not supported by the ACT Bar Association.
Sentencing is a nuanced, multi-factorial exercise. One of the factors to which ACT courts are obliged to have regard, and properly so, is the “character, antecedents, age and physical or mental condition of the offender”. Not all offenders are identical. A one-off offender with strong mitigating circumstances ought not be treated, for sentencing purposes, as being in the same category as a repeat offender with poor prospects of rehabilitation, even if the nature of the offending is heinous as in relation to child sex offending. A blanket prohibition on the receipt of evidence of “character” of an offender is antithetical to principles of proportionality and balance in the sentencing process.
The Bar Association also sees insufficient justification for creating a special category of sentencing by prohibiting the use of evidence of good character only in relation to sentencing of child sex offenders.
The Bar Association looks forward to participating in sensible, constructive discussions on possible sentencing law reform to ensure that victims’ perspectives are fully taken into account, consistent with the proper administration of justice.
End
31 January 2024
Media contact:
Tim Kapustin
Chief Executive Officer
0439 990 305
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