The ACT Bar Association has come out swinging against a proposal to prohibit courts from taking into account a paedophile’s “good character” in sentencing.
The victim-survivor-led petition has on Tuesday been tabled in the ACT Legislative Assembly, calling for good-character references to be scrapped as a provision for any person convicted of child sexual abuse.
The association, which regulates ACT barristers, said while it understood victims may find it “distressing and confronting” to hear a child sexual offender described as being of good character, it would not support the proposed reform.
“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,” the bar association said.
“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’.”
President of the ACT Bar Association Marcus Hassall said it is not appropriate to create a special category of people who are not allowed to use character references.
“It’s inappropriate, in our view, to create a special category where character references are not allowed to be used at all,” he said.
“Human beings are flawed in many different ways, and to many different degrees.
“[So] to create a rigid rule which says, ‘Regardless of your circumstances your good character references are completely irrelevant, they’re not even admissible in court,’ we’re just not going to allow that.”
The association said any sentencing is a “nuanced, multi-factorial exercise”, and in the ACT courts are obliged to consider the character, antecedents, age and physical or mental condition of the offender.
“Not all offenders are identical,” the association said.
“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.”
‘A facade that is wielded by paedophiles to conceal their heinous crimes’
ABC News: Sam Foster
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Harrison James, co-founder of the Your Reference Ain’t Relevant campaign and survivor of child sexual abuse, said the ACT Bar Association’s stance was “not only tone-deaf but a direct insult to every survivor who has bravely shared their story”.
“I think their comments are not just misguided, I actually think they’re really dangerous because it enables perpetrators and betrays the trust of survivors,” Mr James said.
“By defending the indefensible they perpetuate a culture of impunity that emboldens abusers and undermines survivors.
“The community demands accountability and protection for survivors, yet the ACT Bar Association is clinging to a position that aligns more with the interests of abusers than with the pursuit of justice. It’s time for a reality check within the legal community.”
Mr James said he wants to see an end to discounting a child sex offender’s crimes based on “superficial notions of good character” as soon as possible.
“Justice delayed is justice denied. Every day that we wait to enact this change is more days that survivors have to walk into a courtroom and have their trauma completely undermined by a good character reference,” he said.
“When I’ve spoken out I think I’ve been very clear that good character is a facade that is wielded by paedophiles to conceal their heinous crimes.
“It’s a tool of manipulation, a smokescreen that obscures the truth and shields perpetrators from accountability, and this is the moment where we demand an end to this charade.
“It’s just devastating for victims to have to go into courtrooms and hear how good a person their abuser is.”
Mr James said as the petition is tabled on Tuesday he wants the campaign’s actions to speak louder than their words as they “affirm an unwavering commitment to justice”.
The Your Reference Ain’t Relevant campaign has already seen success in NSW where the state’s attorney-general, Michael Daley, has referred the proposed reforms to the Department of Communities and Justice.
In the ACT, Attorney-General Shane Rattenbury has also referred the proposal to the Justice and Community Safety Directorate, which is undertaking stakeholder consultation.