The New Laws Surrounding Character References: They’re No Longer As Important?
1. The Statutory Basis: Section 21A of the Crimes (Sentencing Procedure) Act 1999
The starting point is section 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW), which sets out what courts may (and must) take into account when determining an appropriate sentence.
Key features of section 21A
- General principles: section 21A(1) requires the court to take into account various matters, including aggravating and mitigating factors, when deciding on sentence.
- Aggravating factors: section 21A(2) lists matters that may intensify sentence (e.g. vulnerability of victim, use of weapons, etc.).
- Mitigating factors: section 21A(3) lists matters that may reduce sentence, including the offender’s prior good character.
- Special rules: the subsection that has been most controversial is section 21A(5A).
The key part of section 21A relevant to your question is the provision concerning character, specifically how and when “good character”, including character references and lack of prior convictions, are taken into account.
Under the current wording:
- s 21A(3)(f) includes “the good character of the offender prior to the commission of the offence” as a mitigating factor.
- However, s 21A(5A) limits how that good character mitigating factor can be applied in cases where the offender’s good character was of assistance to them in committing the offence.
This means that if evidence of good character, including references, can be shown to have facilitated the offending, it is not to be taken into account by the court for mitigation.
Section 21A(5A): “special rule for child sexual offences” (in current law)
The current legislative text expressly applies this to child sexual offences:
Where the offence is a child sexual offence, the good character or lack of previous convictions of an offender 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.
— Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A(5A)
In simple terms:
If an offender used their character to gain trust, access, or advantage that contributed to the commission of a child sexual offence, their “good character” isn’t considered mitigating at sentence.
2. Judicial Commission and Case Law: How Courts Treat Character
Courts have long treated prior good character and lack of convictions as mitigating factors in sentencing, for example in decisions such as Lozanovski v R and Aoun v R. Judicial commentary (e.g., Judicial Commission sentencing bench books) explains that such character matters can help reduce sentence unless they relate to facilitation of the offence.
Judicial Commission commentary on character
• Mitigating factors under s 21A(3): includes discussion of how “good character” is considered in sentencing, with reference to cases.
• Subjective matters: explains how character and subjective offender circumstances are factored in sentencing.
These materials emphasise that character references and evidence of good character are traditionally accepted in mitigation, so long as they are genuine and not connected to facilitation of the offence.
3. Reform: NSW Government Policy to Abolish “Good Character” Mitigation
This is the current and important policy development.
Government announcement (NSW)
The Minns Labor Government has announced its intent to abolish “good character” as a mitigating factor in sentencing for all offences, not just child sexual offences.
The government’s announcement text (current as of early 2026) states:
NSW to abolish ‘good character’ at sentencing
For all other crimes, someone’s ‘good character’ is considered by the courts at sentencing if it is relevant. The Government will introduce legislation to amend the Crimes (Sentencing Procedure) Act 1999 to abolish ‘good character’ as a mitigating factor for all offences and repeal the ‘special rule’ for good character.
– Official NSW Government release
This reform is being pursued through specific legislation now before the NSW Parliament:
Bill details
Crimes (Sentencing Procedure) Amendment (Good Character at Sentencing) Bill 2026
This bill, currently in NSW Parliament, is titled:
Crimes (Sentencing Procedure) Amendment (Good Character at Sentencing) Bill 2026
– NSW Parliament bill page
According to news reporting and government releases, this bill will:
- Remove “good character” evidence from the list of mitigating factors under s 21A(3)(f) for all offences.
- Abolish the “special rule” in s 21A(5A) that applies only in child sexual offence cases (because the underlying mitigating factor will no longer exist).
- Retain other mitigation factors (e.g., remorse, cooperation, hardship), but remove character references as a separate mitigating category.
4. What This Means in Practice
Before reform
Right now (as the legislation stands):
- Good character, including character references and lack of prior convictions, is currently listed as a mitigating factor under s 21A(3)(f).
- However, if the offender’s good character was utilised in the commission of certain offences, particularly child sexual offences, then s 21A(5A) prevents that mitigating factor being taken into account.
- Character references are routinely tendered at sentence in burglary, assault, fraud, drug, and other matters to humanise the offender and demonstrate community ties.
After reform (when the Amendment Bill passes)
Under the proposed 2026 reform:
- Good character evidence (including character references) will no longer be a stand-alone mitigating factor in any sentencing decision.
- The specific “special rule” in s 21A(5A) will be redundant because the base mitigating category it applies to will be repealed.
- Other sentencing factors, such as remorse, hardship, rehabilitation work, cooperation, and early guilty plea will still be available.
- Courts will continue to consider subjective matters where relevant, but formal character references will no longer have statutory weight under s 21A.
Driving policy rationale
The government’s explanation focuses on the idea that:
- Good character and references should not count for much, or at all, where they can overshadow the severity of the offence.
- Removing it reduces trauma to victims who see character references for serious offenders.
- It aims to make sentencing more focused on culpability, harm, and risk, rather than external impressions of the offender.
This policy rationale is mirrored in submissions and commentary from legal and sentencing bodies, including the NSW Sentencing Council’s work on “Good character at sentencing”.
5. Sentencing Council and Stakeholder Views
The NSW Sentencing Council has undertaken work on evaluating how “good character” operates in practice and whether reforms are appropriate. Some submissions to the Council can assess how s 21A(5A) and character evidence are used in sentencing.
These submissions, which reference case outcomes and sentencing patterns, have informed the government’s policy position.
6. Case Law Context (Before Reform)
Important cases that discuss good character in sentencing (which form the backdrop to this reform) include:
• Lozanovski v R [2006] NSWCCA 143: good character as mitigating factor. Often cited in sentencing bench books.
• Aoun v R [2007] NSWCCA 292: discussion about the weight to be given to good character.
Both of these have been relied upon historically to show that good character may assist in reducing sentence (e.g., argue for a more lenient outcome).
Judicial Commission materials cite these and similar authorities when instructing magistrates and judges on how to apply mitigating factors.
7. Practical implications for lawyers and accused persons
Once the reform passes:
- Defence counsel will no longer tender choice character references to try to reduce sentence under s 21A.
- Evidence about rehabilitation, community participation, hardship, remorse, early plea, and cooperation with police will remain critical.
- Character narrative will not disappear entirely (courts always see the person before them), but it will no longer have formal statutory grounding.
- Defence strategy may pivot more heavily to subjective circumstances that are not “character” per se, such as rehabilitation or specific factors focused on the offending conduct.
- Victim impact statements and harm indicators may become more central to sentencing decisions.
Summary
Current law: good character evidence, including references, can be taken into account under s 21A(3)(f) where relevant, but is excluded under s 21A(5A) where it aided offending (e.g., child sex offences).
Proposed reform: remove “good character” as a mitigating factor entirely for all offences, abolish s 21A(5A)’s special rule, and shift sentencing focus toward culpability, harm, remorse, cooperation, etc.
Practical impact: character references are likely to no longer carry statutory weight at sentencing once the reform is enacted.
Contact National Criminal Lawyers via our contact page or call 1800 CRIM LAW for confidential advice about the current law and future reforms regarding character references.
