How Character Referencing Letters Affect Court Sentencing

The New South Wales Government on 3 February 2026 introduced the Crimes (Sentencing Procedure) Amendment (Good Character at Sentencing) Bill 2026 to abolish the consideration of "good character" as a mitigating factor in criminal sentencing. The proposed changes amend the Crimes (Sentencing Procedure) Act 1999 and remove both the statutory and common law basis upon which courts have, for decades, taken an offender's prior good character into account when determining punishment.

The reform follows recommendations of the NSW Sentencing Council and has been welcomed by a number of victim advocacy groups who argue that the practice is outdated, unequal, and distressing to victim-survivors. At its core, the reform seeks to ensure that sentencing focuses squarely on the offence committed rather than the offender's past reputation.

Yet beneath the political appeal of the reform lies a far more complex question: does abolishing good character strengthen justice — or weaken it?

While the stated objectives of the reform include fairness, clarity, and victim protection, critics argue that eliminating good character risks undermining proportionality, individualised justice, rehabilitation, and long-standing sentencing principles. The debate is not simply about good character reference letters. It is about how the justice system understands human behaviour, moral culpability, and the purpose of punishment itself.

What Character References Actually Do in Sentencing

Under the existing framework, section 21A(3)(f) of the Crimes (Sentencing Procedure) Act 1999 allows courts to consider an offender's good character as a mitigating factor to reduce the severity of a sentence. Historically, courts have interpreted "good character" to include:

• A lack of prior criminal convictions
• A history of lawful conduct
• Community contribution
• Strong employment history
• Positive reputation supported by sworn evidence or character references

In addition to the statutory provision, the High Court decision in Ryan v R [2001] HCA 21, 2026 CLR 267affirmed that good character is a relevant sentencing consideration at common law. However, in Ryan's case, the High Court confirmed the position that the court must, without considering the offence for which the person is being sentenced, determine if the offender is "otherwise a good character", and if the court finds that the offender is, the court must exercise discretion to determine what weight is to be given to this factor. While a court can give good character limited weight, Ryan's case has made clear that it is not permissible for the court to give no weight whatsoever to good character in mitigation. The High Court has said that a person who is found to be of "good character" is entitled to some leniency. Other Judges of the High Court including Justices Gummow and Hayne (in the minority) considered that a sentencing court should have the discretion to give no weight to an offender's good character.

In contrast, the Court of Criminal Appeal decision of WG v R [2020] NSWCCA 155 took a different approach where the sentencing Judge found that the offender was of otherwise good character, but this was diminished to a point where no leniency was extended due to the many serious child sexual assaults committed over a length period.

There are no subsequent cases beyond Ryan and WG to clarify the issue of whether a sentencing court has discretion to give good character no weight at all in sentence mitigation after having made a finding of "good character".

Abolishing Good Character | What Is Changing

The Crimes (Sentencing Procedure) Amendment (Good Character at Sentencing) Bill 2026 removes good character as a mitigating factor for all offences and abolish the common law authority requiring courts to consider it. While judges will still be permitted to consider matters such as rehabilitation prospects, remorse, and likelihood of reoffending, they will no longer be able to reduce a sentence on the basis that the offender is otherwise a person of prior good standing.

Importantly, apology letters remain permissible. The absence of prior convictions also remains relevant — but only insofar as it does not go to "good character."

This is not a minor procedural adjustment. It is a fundamental shift in sentencing philosophy.

The Case for Abolition

Supporters of the reform put forward several key arguments.

1. Protecting Victim-Survivors from Further Trauma

Victims have reported that hearing offenders described as "a good person," "a respected community member," or "of impeccable character" during sentencing can be deeply distressing. It may feel as though the harm inflicted is being minimised or overshadowed by praise.

In sexual and domestic violence cases in particular, offenders may have used their public respectability to groom victims or evade suspicion. Allowing those same traits to mitigate punishment is said to compound harm.

2. Avoiding Inequality

Critics of good character evidence argue that it is not equally accessible. Wealthy, well-connected offenders are more likely to produce glowing testimonials from professionals, business leaders, and community figures. Marginalised individuals may lack access to such networks, potentially creating disparity in sentencing outcomes.

3. Eliminating Vagueness

"Good character" lacks a precise statutory definition. It overlaps with other mitigating factors such as rehabilitation prospects and absence of prior convictions. Abolition proponents argue that removing a vague label will improve clarity and consistency.

4. Rejecting the "Moral Bank Balance" Theory

There is concern that good character fosters the perception that past good deeds can offset serious wrongdoing — as if an offender can draw down on a moral savings account. Sentencing, proponents argue, should focus on the gravity of the offence, not on whether the offender is seen as socially respectable.

5. Public Confidence

Removing good character may reduce perceptions of special treatment for the well-connected and reinforce the idea that all offenders are equal before the law.

These arguments carry emotional and political weight. However, they are not unassailable.

The Case Against Abolition

Opponents of the reform argue that abolishing good character risks oversimplifying sentencing and eroding fundamental principles of justice.

Principal criminal lawyer at Criminal Defence Lawyers Australia, Jimmy Singh strongly opposes the Council's recommendations to abolish good character evidence at sentence proceedings.

"The criminal justice system in NSW already accounts for an offender's disadvantaged background or upbringing as basis to impose a more lenient sentence. This directly addresses any concerns or criticism that good character evidence applies unfairly to those with a privileged upbringing in contrast to those who due to their socioeconomic position and disadvantaged upbringing have fallen between the cracks and into the hands of the criminal justice system."

"The sentencing Judges in NSW Courts are adequately experienced with enough insight to be capable of maintaining discretion in giving adequate weight, if any, to good character evidence after having taken into account the full extent of the offending conduct and the offender in order to provide individualised justice. The criminal justice system is not and cannot be a one size fits all approach when trying to achieve fairness and purposes of punishment." Says Jimmy.

Further, Jimmy agrees with learned barristers Felicity Graham and Richard Wilson SC who are also Council members who provided comprehensive reasons why good character should not be abolished.

Sentencing the Whole Person

Australian courts have long emphasised that sentencing is not a mechanical exercise. It requires individualised justice. Judges are required to balance the purposes of sentencing set out in section 3A of the Crimes (Sentencing Procedure) Act 1999, including punishment, deterrence, community protection, rehabilitation, accountability, denunciation, and recognition of harm.

To "sentence the whole person" means considering both the offence and the offender.

Good character is not an excuse for criminal conduct. Rather, it may illuminate:

• Whether the offence was out of character
• Whether it represents a momentary lapse
• The offender's moral culpability
• The likelihood of future compliance with the law

Eliminating good character risks narrowing judicial assessment to a snapshot of wrongdoing divorced from context.

Proportionality and Moral Culpability

Two offenders may commit identical crimes under identical circumstances. Yet one may have a lifetime of lawful behaviour, while the other has a lengthy criminal history. Even if prior convictions are separately considered, the broader context of character may illuminate moral culpability.

If an offence is genuinely aberrant — a one-off lapse in an otherwise exemplary life — that fact may bear on proportionality. Punishment must fit not only the crime but the offender's blameworthiness.

Treating everyone identically may sound fair, but equality is not sameness. Justice often requires differentiation.

Rehabilitation and Community Protection

Supporters of abolition argue that rehabilitation prospects can still be considered separately. However, critics contend that good character and rehabilitation are not identical concepts.

A long history of lawful conduct may be a powerful indicator that the offender is unlikely to reoffend. Removing the ability to describe and evaluate that history under the umbrella of good character risks artificial legal compartmentalisation.

If the ultimate goal includes community protection, encouraging reintegration and reform may serve that objective better than imposing harsher penalties detached from personal context.

Judicial Discretion Already Exists

One of the most compelling counterarguments is that courts already possess discretion.

Judges are not obliged to give significant weight to good character evidence — particularly in serious offences. Courts routinely reduce or disregard such evidence where the gravity of the offence overwhelms any prior reputation.

The law has never required judges to ignore seriousness in favour of praise. It simply allowed them to weigh character appropriately.

If the concern is misuse, the answer may lie in guidance — not abolition.

Lack of Evidence of Systemic Injustice

Abolition proponents argue that good character has led to unjustly lenient sentences. Yet critics note there is limited empirical evidence demonstrating systemic distortion.

Without clear data showing that good character consistently produces disproportionate outcomes, removing it may risk overcorrection.

Impact on Aboriginal and Disadvantaged Offenders

While some argue that good character reflects Western norms, others counter that courts already consider social disadvantage, systemic racism, trauma, and poverty as mitigating factors.

The solution to inequality may be better access to legal representation and resources — not stripping away a factor available to all.

Good character is not limited to elites. It can be demonstrated through family responsibility, steady employment, caregiving, or community service — attributes found across socioeconomic backgrounds.

The Risk of Mechanical Sentencing

One of the deeper philosophical concerns is that abolishing good character may shift sentencing toward a more rigid, offence-focused model.

If courts are instructed to ignore broad evidence of prior good standing, sentencing may become narrower and more punitive. While seriousness must remain central, justice has traditionally allowed space for nuance.

Removing good character risks reducing judicial flexibility in complex human situations.

For example:

1. A 55-year-old professional with no prior record commits a low-level fraud under financial stress.
2. A young person from a stable background commits a spontaneous assault in a moment of emotional crisis.

In such cases, context matters. Good character may not erase wrongdoing, but it may inform a proportionate response.

Victim Trauma and the Purpose of Sentencing

The trauma experienced by victims during sentencing is real and deserving of respect. However, the question remains whether eliminating a mitigating factor is the appropriate response.

Victim impact statements already ensure that harm is formally acknowledged. The justice system must balance compassion for victims with principled sentencing.

If sentencing becomes primarily about minimising emotional discomfort in the courtroom, there is a risk that broader legal principles may erode.

Justice must be even-handed — not reactive.

A False Dichotomy?

Perhaps the debate has been framed too narrowly.

The issue is not whether offenders are "good people." It is whether sentencing should account for a person's full history.

The reform asserts that nothing important will be lost because rehabilitation, remorse, and absence of prior convictions remain relevant. Yet critics argue that removing the language of good character creates artificial barriers and may generate further litigation over how evidence can be framed.

If the evidence remains admissible under other labels, abolition may create complexity without achieving meaningful change.

The Broader Implications

The removal of good character may reflect a broader shift toward punitive symbolism. It signals a desire to prioritise denunciation and victim recognition — worthy goals — but risks diminishing rehabilitation and proportionality.

A justice system that focuses solely on wrongdoing without recognising capacity for reform may gradually lose its moral balance.

Public confidence depends not only on toughness but on fairness, consistency, and humanity.

Factors that Mitigate a Sentence

The sentencing process requires a court to keep in mind both the purposes of sentencing outlined in section 3A of the Sentencing Act and the objective, subjective, aggravating and mitigating factors outlined in section 21A of Part 3 of the Sentencing Act.

The purposes of sentencing under section 3A of the Sentencing Act are to ensure that the offender is adequately punished for the offence; to prevent crime by deterring the offender and other persons from committing similar offences; to protect the community from the offender; to promote the rehabilitation of the offender; to make the offender accountable for his or her actions; to denounce the conduct of the offender; and to recognise the harm done to the victim of the crime and the community.

Factors that mitigate or reduce a sentence pursuant to section 21A(3) of the Sentencing Act include the following:

• The injury, emotional harm, loss or damage caused by the offence was not substantial,
• The offence was not part of a planned or organised criminal activity,
• The offender was provoked by the victim,
• The offender was acting under duress,
• The offender does not have any record (or any significant record) of previous convictions,
• The offender is unlikely to re-offend,
• The offender has good prospects of rehabilitation, whether by reason of the offender's age or otherwise,
• The remorse shown by the offender for the offence, but only if the offender has provided evidence that he or she accepted responsibility for his or her actions, and he or she has acknowledged any injury, loss or damage caused by his or her actions or made reparation for same,
• The offender was not fully aware of the consequences of his or her actions because of his or her age or disability,
• A plea of guilty by the offender, noting that the earlier a plea of guilty is entered in the court proceedings, the greater the sentencing discount. The maximum discount for an early plea of guilty is 25%,
• The degree of pre-trial disclosure by the defence,
• Assistance by the offender to law enforcement authorities,
• An offer to plead guilty to a different offence where the offer is not accepted, the offender did not plead guilty to the offence and the offender is subsequently found guilty of that offence or a reasonably equivalent offence.

It is important to keep in mind that while the court is to consider all mitigating factors applicable for an offence, the sentencing court is not always required to reduce the sentence for the offence. It is a matter of discretion for the sentencing court as to what if any weight to give to the applicable mitigating factors in a case on a case by case basis.

Reform with Caution

The abolition of good character at sentencing in New South Wales represents one of the most significant shifts in sentencing philosophy in recent years.

Its aims — protecting victims, promoting equality, and reinforcing accountability — are understandable. However, the reform raises profound questions about proportionality, judicial discretion, and the meaning of individualised justice.

Sentencing has never been about excusing crime. It has been about calibrating punishment carefully, weighing harm, culpability, deterrence, and rehabilitation.

Good character does not negate seriousness. It contextualises it.

If courts are prevented from considering an offender's broader moral history, sentencing risks becoming less nuanced, less individualised, and potentially more punitive without demonstrable benefit to community safety.

The challenge for lawmakers is not to simplify justice, but to preserve its complexity while ensuring fairness for all.

In striving to prevent perceived inequality, the law must take care not to abandon one of its foundational principles: that justice requires looking at the whole person — not just their worst mistake.

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