For those who are pleading guilty to a criminal or traffic offence, it is a good idea to arrange for the preparation of up to three character reference letters for the court to consider during the sentencing process.
References that are prepared by the right people and which contain relevant information will be considered by the court, and can result in a more lenient penalty than that might have otherwise been ordered.
Who should write a character reference?
Character references should be written by a person who knows you personally, such as an employer, colleague, business associate, organiser of a charity you have volunteered with, head of an organisation you are a member of, instructor, coach, long-time friend or religious minister.
It’s usually best not to obtain references from immediate family members, as the magistrate may form the view that such people might be willing to write virtually anything to assist you.
References are an indication that you have been brave enough to admit your offence to those who may hold some sway over your life, and taken responsibility for your actions.
If there is a chance that a conviction or a loss of your driver licence will result in a dismissal at work, you may wish to obtain a reference letter from your employer expressing this. The important information that may need to be communicated would perhaps be your need to travel to different locations or the need for regular criminal background checks in your industry.
Documents evidencing this such as your employment contract will be powerful in persuading the Judge or Magistrate that the impact of a conviction on you personally will be very detrimental.
Further, you may wish to get a reference letter that may confirm your previous or ongoing charity or community work. A letter from the organisation outlining your role as a valuable member of the community may also be strong evidence of your good character.
You may also write your own letter addressed to the Court expressing your remorse, your good qualities and any rehabilitative steps that you may be taking as a result of the charge. This is called a ‘Letter of Apology’ and can also be tendered to the Court to persuade the Magistrate or Judge to deal with your matter more leniently.
What information should a character reference contain?
References should be typed and preferably on a letterhead.
They should either be addressed to ‘Your Honour’ or ‘To the Presiding Magistrate/Judge’.
They should be signed and dated, and the original should be available to hand-up to the court on the day of sentence.
The person writing the letter, who is called ‘the referee’, should use their words and communicate their views without exaggeration or insincerity.
However, the following types of information will be relevant:
- Information about the referee – such as what they do for a living and any positive contributions positive contributions they have made to the community.
- Length of time and circumstances in which the referee has known you – how long ago you met, the nature of your relationship, how often you see each other and so on.
- Knowledge about the offence – your referee should make it clear they are aware you have pleaded guilty to, for example, to ‘middle range drink driving’ and that they consider the offence to be very serious.
- Your good character – the referee should discuss matters like your work ethic, contributions to society, any charitable conduct, your interactions with others and so on, giving examples where relevant.
- That the offence is out of character – the referee may state that the offence is inconsistent with your personality/character.
- That you have taken responsibility and expressed remorse – the referee communicate that you have taken responsibility for your conduct, expressed genuine contrition, taken steps to ensure it does not reoccur and so on, and that in the referee’s view you are unlikely to reoffend.
- Concerns of the impact of a conviction or other penalty– the referee may discuss the prospects of you losing your job, or being unable to achieve a promotion, or not being able to travel for work or family purposes etc in the case of driving cases where you are disqualified from driving.
What it should not contain
A reference letter must never state something which is not accurate or completely true.
Here are a few other ‘no, no’s’:
- The referee should not tell the magistrate what to do – he or she should avoid saying things like ‘You should consider…’ or ‘It would be appropriate to…’.
- Never suggest a penalty – the referee should not say things along the lines of ‘He should not be given a criminal record…’ or ‘You need to make sure he stays on the road’.
- A referee should not embellish, by saying things like ‘He’s the best person in the world’ etc.
Do courts really consider character references?
Courts are required to consider character references that contain matters relevant to the sentencing process.
Section 21A(3) of the Crimes (Sentencing Procedure) Act 1999 outlines what are known as ‘mitigating factors’, which is information that can lead to a more lenient penalty being imposed.
- Having no previous criminal record, or no significant record,
- Being a person of good character,
- Being unlikely to re-offend,
- Having good prospects of rehabilitation, and
- Pleading guilty to the offence.
Provided that information about such matters is contained in the reference letters, the court is required to consider them.
The importance of good character
In the leading case of Ryan v The Queen (2001), the court held that when sentencing a person, the magistrate or judge must:
- Determine whether he or she is of otherwise good character (not taking into account the present offence); and
- If so, must take that fact into account when imposing a sentence.
So, character references which are authored by the right people and which contain relevant information can certainly assist in achieving the best possible outcome.
Your criminal lawyer can provide further advice or assistance in relation to what a reference should contain in the context of your particular case, and even review and make suggestions in relation to references prepared by those who are close to you.
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