The weight given to character references as a consideration in sentencing is at the heart of a battle brewing in Tasmania between a victim of sexual assault and legal groups.
The issue has come under the spotlight in the context of the case of John Wayne Millwood, who pleaded guilty to child sexual offences mid-trial in 2016 and was sentenced to four years in prison.
The court heard that his victim, known by the pseudonym of ZAB to protect his identity, was abused over a period of six years in the 1980s.
ZAB subsequently commenced civil proceedings against John Millwood and was awarded more than $5 million in damages.
Character references in child sex assault cases
ZAB now wants to prohibit those who plead guilty to child sexual offence cases from using evidence of good character, including written character references and court testimony by those who attest to the defendant’s otherwise good deeds and character.
ZAB argues that evidence of good behaviour is irrelevant to such proceedings, as well as a waste of the court time and resources, adding that it brings nothing but a “veneer of respectability” to an offender who for all intents and persons has none as a result of his or her offending conduct. He is pressuring government to consider law reform in the area.
Evidence of otherwise good character is a relevant consideration, lawyer groups argue
But his viewpoint is not shared by lawyer groups who point out that courts consider a very broad range of ‘aggravating’ factors (which make the offence more serious) and ‘mitigating factors’ (which can lead to a reduced penalty) during the sentencing process, and have for generations.
Lawyers argue that arbitrarily prohibiting the use of evidence of otherwise good character for a specific category of offence, or any offence for that matter, would “fetter the court’s discretion and create unfairness”.
Millwood’s sentencing proceedings
During Millwood’s sentencing hearing, various friends and former colleagues gave character evidence to the effect that the former businessman, who ran a successful pathology laboratory, was “honest, reliable and trustworthy” and “ethical at all times”.
A former Tasmanian police minister testified that Millwood was well-respected for his work at Launceston Pathology.
The victim has questioned how a former police minister and medical professionals could consider it “appropriate in any way” to give testimony regarding good character in circumstances where they are meant to be protecting abuse victims.
The law in Tasmania
In 2016, the enactment of the Tasmanian Sentencing Amendment (Sexual Offences) Act effectively excluded ‘good character’ as a mitigating factor in sentencing for sexual abuse offences.
Section 11 of the Act states: “The court is not to take into account the offender’s good character or lack of previous convictions if the court is satisfied that the offender’s alleged good character or lack of previous convictions was of assistance to the offender in the commission of the sexual offence.”
New South Wales
In New South Wales, the aggravating and mitigating factors are listed in section 21A of the Crimes (Sentencing Procedure) Act 1998 (NSW), while section 22 of that Act stipulates that a plea of guilty is to be taken into account, section 22A contains the power to reduce penalties for facilitating the administration of justice and section 23 sets out the power to do the same for assistance provided to law enforcement authorities.
One of these considerations is good character, which is ‘character, antecedents, cultural background, age, means and physical or mental condition’.
However, in 2008 The NSW Crimes Amendment (Sexual Offences) Act inserted special rules for child sexual offences into the Crimes (Sentencing Procedure) Act.
The law in New South Wales is similar to Tasmania: that evidence of good character or lack of previous convictions is not to be taken into account as a mitigating factor if the court is satisfied that these assisted a person to commit an offence.
This is not enough, assert victims’ groups
However, ZAB and victims groups want the law to go further.
They argue that no person who pleads guilty to a sexual offence against children should be able to rely on evidence of otherwise good character, whether or not their lack of a criminal history and otherwise good deeds assisted them to win the trust of a victim and commit the offence.
Lawyer groups disagree, stating that courts should be able to consider such factors in amongst the wide range of other matters considered on sentence, and determine what amount of weight to put on each.