By Paul Gregoire and Ugur Nedim
“In my view, it is clearly inappropriate that personal references used in sentencing proceedings are generated by, or with the assistance of” a large language model program, determined ACT Supreme Court Justice David Mossop two weeks ago.
And as to why, his Honour explained that “if they are not objected to on that basis, it becomes difficult for the court to work out what, if any, weight can be placed upon the facts and opinions set out in them”.
After having pleaded guilty to his charge, current NSW resident Majad Khan was being sentenced in regard to the joint commission of a crime that involved stealing a large number of e-cigarettes from an online supplier: 12,000 IGET e-cigarettes for the sum of $63,600.
However, Justice Mossop cried foul over a character reference likely generated by an artificial intelligence program, like ChatGPT, and provided by the accused’s brother.
The misconception can be that such references are a mere formality, when these documents actually have an effect on sentencing.
And his Honour added that there were enough additional favourable references to allow the questionably produced one not to hinder the overall impression of the accused, but there were further issues with the remaining documents that too affected sentencing outcomes.
A successful, yet bungled, crime
Majad Khan was before the ACT Supreme Court on 7 February, facing one count of obtaining property by deception, contrary to section 326 of the Criminal Code 2002 (ACT). And this offence carries maximum penalties of up to a $160,000 fine and/or 10 years imprisonment.
As the offence involved four co-accused, including Khan, it was considered one of joint commission in accordance with section 45A of the Criminal Code, which means all taking part, regardless of their level of involvement, are equally culpable, and a level of parity should be reflected in sentencing.
Khan and three other co-offenders arranged to meet with a Facebook Marketplace seller to purchase the large quantity of e-cigarettes, or vapes, in a carpark outside an apartment block located in the Canberra suburb of Bruce at around 3 pm on 15 May 2021.
Co-offender Joshua Rhodes and Khan met with two men and the e-cigarettes were loaded into a Fiat SUV, of which the latter drove away with, and the vapes have never been seen again, while the former handed the seller envelopes filled with pieces of paper made to appear like money.
The duped seller called ACT police, while Khan was captured by CCTV driving the SUV into the carpark of the building where co-offender Amro Aseeri lived. And officers executed a warrant at Aseeri’s apartment two days later, where envelopes containing fake paper money were found.
The importance of character references
Khan and Aseeri pleaded guilty on 4 October last year, just five days prior to standing trial, and their sentencing was then adjourned to February. And these pleas were tendered late and only after co-accused Rhodes and Albion Osmani had pleaded guilty and been sentenced.
“The offender tendered a number of personal references,” Justice Mossop explained and then pointed out that “the terms of the reference from his brother strongly suggest that it was written with the assistance of a large language model program, such as ChatGPT”.
After pleading guilty in court, an offender then appears for a sentencing hearing, which involves a judicial officer determining an appropriate sentence, and to assist them in this the person being sentenced should tender an apology letter to the presiding officer, along with character references.
One character reference can suffice, however three is ideal. And whilst these references might appear as mere formalities, a judge or a magistrate thoroughly considers such documents, and they can mean the difference between a lighter and heavier sentence.
“Read as a whole, the use of language within the document is consistent with an artificial intelligence generated document,” his Honour said of the reference, and he pointed to descriptions within it that use generic language about aspects of behaviour but no concrete circumstances.
Justice Mossop repeated a passage regarding the offender’s commitment to cleanliness that bordered on the absurd, and on checking with Khan’s lawyer as to whether the reference was the product of artificial intelligence, they suggested it may have been run through an online translator.
His Honour then ruled that “it is clearly inappropriate that personal references used in sentencing proceedings are generated by, or with the assistance of, large language models”, as it is difficult for the court to place any weight “upon the facts and opinions set out in them”.
“It is also undesirable that they be written in another language and then translated using a computer-based translation, as the subtleties of the use of language, which will be significant in assessing the content… will not necessarily be accurately reflected in the automated translation.”
Khan had at least half a dozen character references before the court, and all but his brother’s document could be taken into consideration and served to show him of good character, which, if established, does act as a mitigating factor when sentencing.
However, there continued to be an issue with the character references and the impact they had upon Khan’s sentence, as those writing references that were acceptable had failed to specifically address his offending, as a textbook reference should, which hindered the assessment of it.
The five other character references that were acceptable continued to fall short, as, on not addressing Khan’s actual offending, “the high praise of the offender is hard to reconcile with his involvement in the offending”, and the documents made “no attempt to do” this.
The orders of the day
The Australian Capital Territory has a similar system to the jurisdiction of New South Wales, whereby entering an early guilty plea results in a sentencing discount and the percentage of the discount depends on the length of time prior to the commencement of trial that the plea is entered.
Khan received a 10 percent sentencing discount due to the utilitarian value of his early plea. And this was the lowest discount one can receive on the scale of sentencing discounts, because it was entered late, with only days left until his trial was to commence.
His Honour assessed objective seriousness as mid-range. And there was ample evidence that Khan was of good character. But there was the issue regarding his references, as they gave no clear indication as to how someone of such good standing could have come to participate in such a crime.
And on 7 February, ACT Supreme Court Justice Mossop sentenced Khan to a 21 month and 15 day suspended sentence and the added requirement of having to remain of good behaviour during the sentence period was also imposed.
Khan further received a $6,000 fine as the offender would likely have been given an intensive correction order (ICO) if he lived in the ACT, which is a custodial sentence served in the community and would have required community service, so, as he couldn’t participate, he was fined instead.
