A sexual violence campaigner is “stoked” that National is planning to ban judges from considering good character references while sentencing sex offenders, but lawyers warn the change could lead to less fair sentencing.
While character references could still be provided to the court under National’s planned law change, judges will not be able to take the submissions into consideration.
Defence lawyer Samira Taghavi said the references matter because they help the court assess true culpability, likelihood of reoffending, and prospects of rehabilitation.
Taghavi said it was “dangerous” and “knee-jerk populism” that would cause real injustice in practice.
“For repeat sex offenders, I doubt you would find anyone writing meaningful character references in the first place. Their prior convictions make ‘good character’ claims implausible - judges already give such evidence little or no weight in those cases.”
She believed it would impact the ability of some sex offenders to get a fair sentence.
“The environment for anyone charged with a sexual offence is already highly prejudiced.”
Sexual violence survivor and advocate Louise Nicholas said hearing that a sex offender is a “fantastic person”, that the crime is “uncharacteristic” or that they are a ”fantastic father” makes survivors want to “spit venom”.
“They chose to commit that crime, there is no good character.”
Nicholas said if the defendants were such wonderful people, “like a great employer, sports star, whatever”, then why did they commit the offence.
“It’s a bloody good thing... We have been wanting this to happen for a very, very long time, so we’re stoked that the Ministry of Justice and Luxon, they’re actually putting their hand up and saying no. We absolutely agree with what the sector is saying and people don’t deserve good character references when they have committed a heinous crime.”
Marie Dyhrberg KC said the purpose of good character references was not to excuse criminal behaviour.
Rather, she said they helped a judge assess things like whether the offending appears out of character, the defendant’s prospects of rehabilitation, their level of community support and the likelihood of reoffending.
“Victims can understandably experience glowing references as minimizing the harm done to them. So politically and emotionally, the proposal is easy to understand.
“But legally, sentencing systems generally work best when judges retain the ability to weigh all relevant circumstances. A blanket prohibition assumes that ‘good character’ is never relevant in sexual offending cases, which is a much stronger claim.”
She told the Herald judges already tended to treat good-character evidence cautiously in serious sexual offending cases, especially where there was abuse of trust, planning, grooming, or repeated offending.
“Courts are not simply handing out major discounts because someone was ‘a good guy’.”
Prime Minister Christopher Luxon said today no sexual offender is a person of good character.
“I don’t care if you’re a good athlete and I don’t care if your manager liked that you turned up on time at work.
“That victim in the courtroom is your character, your conviction is your character and no sympathetic statement to the contrary should play a role on their sentencing.”
National’s justice spokesman Paul Goldsmith said too often, the interests of offenders are prioritised over victims of sexual violence.
“As the law is written today, judges are required to take into account testimony from individuals willing to speak to an offender’s character – former coaches, employers and family members willing to state on the record that any offending is the exception, not the rule.“
Goldsmith said that while this might serve the interests of “well-connected offenders”, it rarely serves the interests of victims.
“The consequences for the victim remain, regardless of the former reputation of the perpetrator.“
If National is reelected in November, Goldsmith said judges would be prohibited from treating good character as a mitigating factor at sentencing for all sexual offending.
“The result will be tougher sentences, and stopping judges from being forced to consider the public reputation of an offender when sentences for sexual offending are being handed down.“
This builds on the party’s previous work to limit the discounts judges can apply at sentencing to 40%, giving sexual violence victims the power to determine whether their perpetrators receive permanent name suppression and making stalking illegal and a jailable offence, Goldsmith said.
“A vote for National is a vote for real consequences for crime.”
The move to ban good character references follows the New South Wales government’s removal of good character as a mitigating factor for sex offenders at sentencing.
Katie Harris is an Auckland-based journalist who covers issues such as sexual assault, workplace misconduct, media, crime and justice. She joined the Herald in 2020.
Sign up to The Daily H, a free newsletter curated by our editors and delivered straight to your inbox every weekday.