By Paul Gregoire and Ugur Nedim
New South Wales parliament passed a law on 7 May 2026 that abolished the ability of the courts to consider the prior good character of those convicted of sexual offences as a mitigating factor – in other words, a factor that can lead to a lesser penalty – during sentencing proceedings.
This means that good character references, parts of apology letters to the court that refer to past good character and character witnesses can no longer be considered when a judge is determining the criminal penalty to apply to a sexual offender.
Initial push to abolish evidence of good character in all sentencing proceedings
Attorney general Michael Daley introduced the Bill through the Crimes (Sentencing Procedure) Amendment (Good Character at Sentencing) Bill 2026 on 4 February 2026.
This initial Labor proposal sought to abolish the ability to use evidence of good character during sentencing proceedings for any criminal offence.
However, amendments were made on 4 May 2026 pursuant to demands by the Coalition and NSW Greens in the Legislative Council which ultimately confined the rule to sexual offences.
Further amendments were made on 7 May 2026 which created what is known as a ‘special rule’ for sexual offences, and the law was passed on that day.
Not the first prohibition of its kind
The prohibition is not the first of its kind in New South Wales.
A similar special rule was passed in 2008 which prohibits those convicted of child sexual offences from having their prior good character being considered as a factor to lessen their penalty.
A long-standing factor in sentencing
Considering good character as a mitigating factor goes back to the 18th century, the rationale being that a person who has not previously offended and who, in many cases, has been a gainful member of society and made valuable contributions to it should have such factors considered when the court considers the appropriate penalty.
The counter argument is that allowing those who commit serious crimes to rely on their prior good character can be unfair to victims and result in penalties that are less severe than they should be, which can in turn send a message that people can rely on their previous character to ‘get off easily’, thereby diluting the important sentencing objective of general deterrence.
Labor wants to extend the prohibition
NSW Labor was arguing, however, that while sexual offences were its recommended target, there are other times when good character application is questionable, so they sought to completely rid the NSW criminal justice system of the principle of good character. But, as the amenders insisted, these other occasions when raising character might be dubious, should be left up to a judge to decide on.
Indeed, as NSW Greens MLC Sue Higginson put it, the Minns government was attempting to legislate with “a sledgehammer, where a scalpel” was needed.
Mitigating and aggravating factors
The main sentencing laws involved in the amendments sit under section 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the CSP Act). Subsection 21A(1) of the CSP Act explains that within the section are lists of aggravating factors and mitigating factors that if “relevant and known to the court” should be considered by a judge or magistrate when handing down a sentence.
Subsection 21A(2) provides a long list of aggravating factors that if involved in the crime an individual is convicted over can then lead to a more severe sentence. Subsection 21A(3) provides a list of mitigating factors that result in reducing sentences. There’s no limit on how many factors can be considered, and these lists are non-exhaustible, so other factors raised can function similarly.
Subsection 21A(3)(f) of the CSP Act outlines that if “the offender was a person of good character”, then this can be taken into account as a mitigating factor. NSW common law, or the body of judge-made law built up over time as a result of court decisions, also provides that good character should be considered when sentencing.
And the original bill introduced by the attorney general sought to abolish good character completely from statutory law and this state’s common law.
Subsection 21A(5A) of the CSP Act contains the special rule for child sexual offences, so that when a judge is sentencing an individual over a child sex crime their “good character or lack of previous convictions… is not to be taken into account as a mitigating factor if the court is satisfied that the factor concerned was of assistance to the offender in the commission of the offence”.
The Aboriginal Legal Service pointed out, in reference to the blanket prohibition on raising good character that the Minns government was proposing, that it was not a simple reproduction of the special rule for child sex offences, as that rule only prevents good character if the offender used their upstanding reputation to assist in committing their crimes, but it could be raised otherwise.
The amendment legislation
The amendments passed on 7 May had not taken effect at time of writing. The first major change the bill makes to the CSP Act is to add new subsection 21A(3A), which stipulates that even though good character is listed as a mitigating factor, and evidence has been raised in court about a defendant’s good character, the judge doesn’t have to give this any weight in determining the right sentence.
The bill also makes amendments to the special rule for child sexual offences, so that after the new laws are enacted that special rule will only apply to preventing a court from taking into account a convicted sex offender’s “lack of previous convictions” as a mitigating factor if that fact was of assistance to the offender in the commission of their crimes.
This means that the good character ban on sexual offences too applies to child sexual offences in general and not only under certain circumstances.
The main amendments sit under new subsections 21A(5AA) through to 21A(5AD) of the CSP Act.
Subsection 21A(5AA) of the CSP Act outlines that despite good character being listed as a mitigating factor under subsection 21A(3)(f), when a court is determining the appropriate sentence for a sexual offence, it must not consider the good character of the convicted individual as a mitigating factor.
Subsection 21A(5AB) of the CSP Act stipulates that “to avoid doubt” the principle or common law rule that requires the court to consider good character has been abolished as a mitigating factor, when sentencing for a sexual offence.
The new law further sets out, under subsection 21A(5AC) of the CSP Act, that when determining the correct sentence for a sexual offence, the court must not consider evidence that was put to it “solely for the purpose of establishing good character, and subsection 21A(5AD) underscores that the 5AC rule doesn’t prevent the court from considering evidence adduced for any other purpose.
New section 108 of the CSP Act will further stipulate that after 2 years of this regime having been enacted, the minister must review how it has been operating and then report back to both houses of NSW parliament within the following 12 months.
And a note of clarification is being inserted into schedule 2 of the CSP Act, which outlines that in respect of “sentencing proceedings begun but not finalised before, and a sentence imposed after” this new regime comes into play, the new law applies to sexual offences committed before or after they’re enacted, and they too apply to proceedings commenced before or after the law is enacted.
The attempted good character blanket ban
The majority of the NSW upper house voted to amend the government bill in the manner in which the NSW Greens had progressed. The NSW Labor government sought to continue to remove the ability to raise good character as a factor in NSW criminal court cases in general, which, while extreme in its impact, does reflect a rising tough-on-crime streak emerging in this administration.
Attorney general Daley explained during his second reading speech on the bill that he had met with Harrison James and Jarad Grice from the Your Reference Ain’t Relevant campaign early on in his tenure, which had led to the law reform.
These two men have lived experience of child sexual abuse, and the pair are now campaigning for child sexual offenders and sex offenders to not have their good characters raised in court as victim-survivors are then made to sit through explanations regarding the upstanding nature of the person who alleged sexually assaulted them.
There was apparently no concerted NSW parliamentary effort to prevent the law reform so those convicted of sexual offences in court cannot have their prior good character raised as evidence that might reduce their punishment for the crime that they’ve been convicted in respect of.
However, the reason that the Minns government sought to remove good character as a mitigating factor completely from the sentencing process remains unclear, especially when its primary goal in moving the amendment could have easily been achieved in a more direct way, as the NSW Greens revealed.
