by Paul Gregoire and Ugur Nedim
In a move that has long been demanded by victim advocacy groups and is based upon a recommendation contained in a New South Wales Sentencing Council report of July 2025, the state government has introduced legislation that would prohibit the use of ‘good character’ as a factor which has the potential to reduce the penalty imposed upon a person who is being sentenced for a criminal offence in New South Wales.
Good character in sentencing proceedings
Good character can include a person’s lack of a criminal history as well as any ‘meritorious conduct’ prior to the offence being committed.
Such character can be established by way of written character references or, particularly in the higher courts, by witnesses giving testimony in that regard inside the courtroom.
Good character is a mitigating factor for most criminal offences in New South Wales, which means it can lead to a more lenient penalty; whether that be a less severe penalty type such as an intensive correction order or community correction order rather than a prison sentence, or a reduced duration of a penalty type such as a shorter prison sentence than would otherwise be imposed.
The use of good character as a mitigating factor has been practised since the 18th century, and it is one of the most universally recognised aspects of sentencing practice.
The new law
Introduced on 3 February 2026, the Crimes (Sentencing Procedure) Amendment (Good Character at Sentencing) Bill 2026, seeks to remove good character as an available mitigating factor, which means that certain evidence now raised to show good character and perhaps lessen a sentence will no longer be available. But that same evidence could still be available to present under a different light.
“The NSW Sentencing Council recommended that good character should be abolished as a mitigating factor at sentencing for all offences,” NSW attorney general Michael Daley told the chamber. And he added there are five reasons for this: good character is vague, it’s unjustified, it is not a sign of fruitful rehabilitation, its use retraumatises victims, and it’s more readily available to certain people.
The yet-to-be passed laws have been further predicated on a preexisting law in NSW known as the ‘special rule’, which prohibits those convicted in respect of child sex offences from having their good character assessed on sentencing.
And while the introduction of these laws has been welcomed by victims’ groups, a whole lot of criminal defence lawyers have fallen off their seats over the news, and the NSW Bar Association and the Aboriginal Legal Service NSW/ACT both oppose the changes.
Reasons behind the prohibition of the use of good character
Based on the concerns raised to it, the majority of the Sentencing Council concluded that the common law rule that progressed good character and its statutory provision in New South Wales law be revoked. In turn, the 2008-enacted special rule that’s ensured child sex offenders could not rely on this factor should too be revoked, as the measure will now apply to all crimes.
The report advises that the current amendments rely on the same factors that saw the special rule enacted. The council states that due to the prevalence of child sex offences the rule was warranted. The 2017 Royal Commission into Institutional Responses to Child Sexual Abuse detailed the issues that it found in terms of good character mitigating punishing child abuse crimes.
The commissioners found that the idea that prior good character equals better prospects for rehabilitation is false, a lack of prior convictions demonstrating good character can be misleading, accepting that a person convicted of a child sex offence is of prior good character tends to belittle or trivialise the harm caused by their offending and appearing as upstanding often facilitates a crime.
The Your Reference Ain’t Relevant campaign, run by cofounders Harrison James and Jarad Grice, who are both childhood victim-survivors, has been pivotal in bringing about the reform. These men presented their case and a petition to the NSW attorney general. They maintain that it’s wrong when a victim of child sexual abuse has to sit in court and hear about the good character of their abuser.
The council made several recommendations. These involve revoking the law to prevent evidence that can only be raised via good character from being progressed. And good character should be removed from both the statutes and from common law, as the High Court found in 2001’s Ryan versus The Queen that the common law principle of good character means it should always be applied.
The guts of the bill
Mitigating and aggravating factors must be considered by a judicial officer on sentencing if the evidence presented at trial triggers the specific factors that sit under section 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Act). An aggravating factor makes a sentence more severe.
The legislation serves to revoke consideration of whether a convicted individual is “of good character” from where it sits under subsection 21A(3)(f) of the Act.
The legislation also removes subsection 21A(5A), which currently contains the special rule that prevents courts from considering good character on sentencing over child sex offences.
There are various other amendments that serve to remove good character from various other sections of the Act.
And new section 108 of the Act would require that the new law should be reviewed by NSW parliament after it’s been in operation for the period of 2 years.
Good character is part of a whole system of law
“The NSW Bar Association opposes proposed changes to sentencing laws to prevent good character from being taken into account as a mitigating factor,” reads a 6 February 2026 statement.
“The sentencing process currently involves an assessment of both the offending and the offender as a whole person, including any evidence of otherwise good character. This assessment is key to ensuring fairness and individualised justice in the sentencing process.”
The association that represents NSW barristers added that “sentencing is a complex process”, and if a crime is “an aberration for a person who has otherwise made positive contributions to the community” this ought to remain as a mitigating factor, and it is understood that there are times when this evidence should not reduce a sentence much if at all when a crime is so heinous.
The NSW Bar Association adds that sentencing is traumatic for victims and consideration of it might appear an attempt by “well-connected offenders to minimise the harm caused”, and it acknowledged that attempts to improve witness experience are underway. But it further insisted that good character serves defendants from a range of backgrounds, including disadvantaged circumstances.
The Aboriginal Legal Service opposes the law, and it further rejects that the section 21A(5A) special rule be removed. It points out that the section 21A(5A) law currently maintains that good character not applied to child sexual offending only if it is found that the well-heeled or well considered offender has used their upstanding reputation to their advantage when committing child sex crimes.
The ALS submission to the 2024 review of good character in sentencing outlines that the process of sentencing, which is known as “instinctive synthesis”, requires a judge to take in a range of factors, including whether an offender abused their position of trust or authority, if a victim is vulnerable and whether there are multiple victims or a series of criminal acts.
So, while no prior convictions are taken as a sign of good character, the prior conviction of other convicted people serve to make their sentences more severe. The ALS asserts that extending section 21A(5A) to all offences would undermine procedural fairness and as the special rule currently stands, it “remains appropriate, equitable and fit for purpose”.
As for revoking good character, the ALS rejects the reform. The legal body makes certain that it understands the serious harms of sexual offences, but it considers “options for increased support and information for victim-survivors” should be made available, and any reforms should be progressed in order to reduce the trauma of the court experience for victims.
“We also recommend that consideration be given to increased community education about the criminal legal system and the sentencing process,” said Nadine Miles, principal legal officer of the Aboriginal Legal Service NSW/ACT and the author of its submission.
“We observe that there do not appear to be any other Australian jurisdictions which so broadly restrict the use of good character evidence in sentencing for sexual offences against children, and that implementing this amendment would render NSW an outlier,” she said in ending.
