The Removal of Good Character as a Mitigating Factor on Sentence

On 4 February 2026, NSW Parliament introduced legislation which seeks to remove the consideration of good character as a mitigating circumstance on Sentence. What this practically means for defendants, the Courts and Sentencing exercises is important. 

The Context

Good character has existed as a principle applied in the Sentencing exercise for a significant period of time. There are three broad categories of good character, namely:

1. Criminal Record
2. General Reputation
3. Meritious Conduct

Pursuant to section 21A(3)(f) of the Crimes (Sentencing Procedure) Act 1999, at Sentence if "the offender was a person of good character" prior to the offending before the Court, that is a factor that can be taken into consideration when determining an appropriate Sentence to be imposed. Good Character was one of the 14 mitigating factors available to the Court to consider. 

It is an important distinction, namely that there is another mitigating factor available, being " (e) the offender does not have any record (or any significant record) of previous convictions."  As such, good character as a mitigating factor in the sentencing exercise generally refers to General Reputation and Meritious Conduct.

The Courts have considered good character, and have been previously guided by the judgment of Ryan v R [2001] HCA 21, 206 CLR 267, that:

1. the court must, without considering the offence for which the person is being   sentenced, determine if the offender is “otherwise of good character”
2. if the court finds that the offender is of otherwise good character, the court must   exercise discretion to determine what weight is to be given to this factor.

Notably, there are currently matters before the Courts where good character is considered to have less weight because, for example, general deterrence looms largely. This is largely seen in offences for Drink and Dangerous driving, and harder to detect offences of child pornography and drug importation. 

Parliament has previously curtailed the effect of this mitigating factor in 2008 when an exception was created (the special rule) for child sex offences, where if one's good character assisted the commission of those offences it could not be considered as mitigating by the Court. 

Sentencing laws in Australia are constantly under review, and the legislation specifically sets up the Sentencing Council to undertake these reviews and provide recommendations, with the input of many different stakeholders, including the profession, Police, the Courts and advocacy groups. 

In 2023, advocacy group Your Reference Ain't Relevant campaigned for the removal of consideration of a lack of criminal history and “good character references” entirely, in sentencing for child sexual offences (i.e. not just if it assisted them in the commission of the offence). From here, the NSW legislative council referred the matter to the NSW Sentencing Council for review. 

The Recommended Change

Parliament has indicated they will remove the following from Section 21A of the Crimes (Sentencing Procedure) Act 1999 (being the paragraphs emphasised):

(3) The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows......

      (f)  the offender was a person of good character,

        (5A) Special rules for child sexual offences In determining the appropriate sentence for 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.

In  a press release from 1 February 2026, the Attorney General indicated this change will help ensure a "uniform approach" and that the law is "clear and consistent."

In the second reading speech on 4 February 2026, he further stated that "the court can consider evidence if it is relevant to any other purpose, principle or fact on sentencing, so that it can consider the whole person."

What does this practically mean

First, and perhaps most importantly, it needs to be clearly stipulated that references or letters on behalf of the offender are still able to be handed up to the Court on a Sentencing exercise. This material however will not be considered for character purposes, but rather to establish details about the offenders background and life, which may inform other mitigating factors. 

The Sentencing Council, in their review, recommended that these letters be referred to as "written references", rather than "character references". 

In the practicalities of sentencing an offender, good character as a mitigating factor was rarely ever considered in isolation. Other mitigating factors such as prospects of rehabilitation and likelihood of reoffending are often considered in conjunction with character and can be informed by one's background. Furthermore, the mitigating factor of lack of criminal convictions remains intact in the Sentencing exercise.

As such, the evidence raised on a "good character" basis would be directed into other mitigating factors and given a matter of weight, rather than being dealt with in a discrete mitigating factor on its own (to which prior to the reform, it rarely was).

Utlimately, the amendment to the Sentencing law means the law is working and reacting to the shifting attitudes of society. Further, the amendment will still allow the judiciary to deliver individualised justice. 

Importantly, once passed, the amendment will apply to any active proceedings. For example, if a Sentence is pending currently and the law is passed, it will apply. 

The debate on the bill was adjourned for 5 days from 4 February 2026.