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1. Overview

Section 16A(2)(m) requires a court to take into account various factors personal to the offender including their character:

Section 16A

(2) In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court:

(m) the character, antecedents, age, means and physical or mental condition of the person

The Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth) inserted s 16A(2)(ma).

Section 16A

(ma) if the person’s standing in the community was used by the person to aid in the commission of the offence – that fact as a reason for aggravating the seriousness of the criminal behaviour to which the offence relates.

2. Meaning of Character

‘Character’ has been interpreted broadly by the courts and goes to good character. In R v Gent [2005] NSWCCA 370, Johnson J (McClellan CJ at CL and Adams J agreeing) observed at [49] that:

It has been said that there is a certain ambiguity about the expression “good character” in the sentencing context. Sometimes, it refers only to an absence of prior convictions and has a rather negative significance, and sometimes it refers to something more of a positive nature involving or including a history of previous good works and contribution to the community…

In Elomar v The Queen; Elomar v The Queen [2018] NSWCCA 224, Hoeben CJ at CL noted that the offenders’ good character did not create the opportunity to bribe foreign officials at [116]:

There is, in my opinion, a significant distinction to be drawn between persons whose claim to good character is based upon them not having been engaged in any criminal activity and evidence of good character which goes not only to that subject, but which positively establishes that the particular person or persons under consideration have made a positive contribution to society and have demonstrated a consistent history of philanthropy directed to their fellow citizens.

In the state sentencing case of Ryan v The Queen [2001] HCA 21, McHugh J commented at [31]:

What makes a person of otherwise “good character” will necessarily vary according to the individual who stands for sentence. It is impossible to state a universal rule. 1

2.1 Distinguishing ‘character’ from ‘antecedents’

In Weininger v The Queen [2003] HCA 14 Kirby J (albeit in dissent) distinguished ‘character’ from ‘antecedents’ in reference to s 16A(2)(m). Justice Kirby observed at [58]–[59]:

The terms of par (m) also make it clear that “character” and “antecedents” are viewed by the Parliament, as by the common law, as separate considerations. Each of them is relevant to sentencing. “Antecedents” refers to any past criminal conviction, agreed or proved. Of course, past criminal convictions may also be relevant to a court’s assessment of the “character” of the person being sentenced. However, for a very long time, the absence (or existence) of prior convictions and the fact that a person is a first offender have been regarded as separate and special considerations in sentencing. The absence of prior convictions (quite apart from issues of character) will usually attract more lenient punishment. In part, it recognises the fact that a first offender’s lapse may be treated as exceptional, atypical and out of character. In part, it also reflects the experience of the criminal justice system that many of those who come before courts for sentencing are repeat offenders who, for that reason, must be treated more seriously because they have been repeatedly shown to be in breach of the law and have repeatedly obliged the mobilisation of the agencies established by society to defend it from crime.

A first offender may, or may not, otherwise have a good character. He or she may simply have been lucky in not having been apprehended before. But this fact does not justify disregard for the separate consideration of a first offender’s status as such, apart from any consideration of the character of that offender. The express differentiation between the two concepts in s 16A(2)(m) makes this point abundantly plain (emphasis added).

This distinction was subsequently accepted in Goldberg v The Queen [2018] NSWCCA 99 at [118] (Fullerton J, Hoeben CJ at CL agreeing) in the context of state offences.

If a sentencing judge considers an offender’s antecedent criminal history of little relevance, those prior offences should not then be relied on to establish bad character. 2

In Pfeiffer v The Queen [2009] NSWCCA 145, McClellan CJ at CL (Simpson and Buddin JJ agreeing) considered the sentencing judge to have erred in characterising the offender to be of bad character because of several minor offences that were otherwise ‘given little if no weight’ (at [17]). McClellan CJ at CL noted at [18]:

The applicant submitted, in my opinion correctly, that if his Honour concluded that the prior offences were stale and of no consequence then the appropriate conclusion was that the applicant was otherwise a person of good character.

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3. Operation of s 16A(2)(m)

Section 16A(2)(m) states that character evidence that is relevant and known to the court must be taken into account. The weight attributed to such evidence will depend on all relevant circumstances. 3

In Ryan v The Queen [2001] HCA 21, a majority of the Court held the sentencing judge had fallen into error by refusing to take into account the offender’s ‘unblemished character and reputation.’ 4 Kirby J observed at [102]:

The evidence of good conduct, or of matters which reveal redeeming features of the offender’s character, tendered as relevant to sentencing will rarely, if ever, be discarded as immaterial to the sentencing function. The evidence may sometimes be disbelieved. It may sometimes be overridden by the objective seriousness of the offences or by countervailing evidence or by other considerations. But it is a mistake in sentencing to treat such evidence as irrelevant to the task at hand.

In R v Gent [2005] NSWCCA 370, [53] Johnson J (McClellan CJ at CL and Adams J agreeing) cited the following passage from McHugh J in Ryan v The Queen [2001] HCA 21:

Sentencing is not a mathematical process (Pearce v R (1998) 194 CLR 610 at 624 [46]). Various factors have to be weighed. The otherwise good character of the prisoner is one of them. It is a mitigating factor that the sentencing judge is bound to consider. But the nature and circumstances of the offences for which he or she is being sentenced is a countervailing factor of the utmost importance (emphasis added).

The rules of evidence generally do not govern the receipt of information concerning character at sentencing. In Weininger v The Queen [2003] HCA 14 a majority of the High Court noted at [21] that:

[T]he phrase “known to the court” should not be construed as imposing a universal requirement that matters urged in sentencing hearings be either formally proved or admitted. 5

3.1 Standing in the community: s 16A(2)(ma)

Section 16A(2)(ma) provides that if a person’s standing in the community is used to aid in the commission of the offence, the court is to take that into account as an aggravating factor:

Section 16A

(2) In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court:

(ma)  if the person’s standing in the community was used by the person to aid in the commission of the offence–that fact as a reason for aggravating the seriousness of the criminal behaviour to which the offence relates

Section 16A(2)(ma) was introduced into the Crimes Act 1914 (Cth) in July 2020 by the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth).

The Court in R v Terrence Edward Laybutt [2021] NSWDC 2, considered the application of the provision, albeit noting that it did not apply to the sentence under consideration. The Court stated (obiter) at [42]:

I note that subsection (ma) refers to the person’s standing in the community and whether it was used in aid of the commission of the offence. That section was enacted after the conduct of the offender constituting the offence and therefore does not apply. Furthermore I do not think the argument holds good in this case in any event for it was not due to his standing in the community as a teacher that he was able to communicate with the AOI. The issue becomes a little opaque because the offender did make reference to being a schoolteacher and wanting to teach the AOI various things so there is a basis for making that argument. As noted however it is not an express consideration under the section and was not suggested that it should be taken into account in that way. Rather it is a matter that goes to the issue of gaining the AOI’s confidence that I referred to in considering objective seriousness.

3.1.1 Carve-out in relation to customary law or cultural practice

Section 16A(2A) prevents a court from taking into account any form of customary law or cultural practice as a reason for either mitigating or aggravating the seriousness of the offence.

However, the provision was amended by the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth) to include a carve-out in relation to s 16A(2)(ma):

Section 16A

(2A)  However, the court must not take into account under subsection (1) or (2), other than paragraph (2)(ma), any form of customary law or cultural practice as a reason for:

(a)  excusing, justifying, authorising, requiring or lessening the seriousness of the criminal behaviour to which the offence relates; or

(b)  aggravating the seriousness of the criminal behaviour to which the offence relates. [emphasis added]

3.2 Circumstances where good character may carry less weight

The following circumstances have been identified by the courts as circumstances where good character may carry less weight at sentencing:

3.2.1 Offending has occurred over an extended period of time
3.2.2 Good character has provided the opportunity to offend
3.2.3 When the need for general deterrence is strong

3.2.1 Offending has occurred over an extended period of time

Less weight is usually given to good character where the offending has occurred over an extended period. In Ryan v The Queen [2001] HCA 21 Callinan J stated at [174]:

In exercising a sentencing discretion, less weight has been given to previous good character in circumstances in which the offence is not an isolated act. When the crime or crimes are part of a prolonged course of criminal activity, less weight will usually be given to the apparent good character and record of an accused.

In R v Huang, R v Sui [2007] NSWCCA 259, Simpson, Howie and Hislop JJ held at [36]:

When the activity is engaged in for profit, over a significant period of time and with a large number of transactions, the prior good character of the offender is of less significance than might otherwise be the case. 6

In Cavuoto v Reis [2017] ACTSC 235, Penfold J noted at [31]:

Furthermore, while on the one hand the appellant’s previous good character entitles him to a degree of leniency, it also suggests that he should have been able to understand the seriousness of his actions, how very unacceptable they were, and the likely effect on the victim. I note also that the appellant’s somewhat vicious feelings towards the victim endured for a remarkably long time, and were acted on in the most extreme way nearly two years after the relationship ended.

3.2.2 Good character has provided the opportunity to offend

At common law, an offender’s prior good character may carry less weight where their prior good character placed them in a position which enabled them to offend. 7 This is now expressly reflected in s 16A(2)(ma) of the Crimes Act 1914 (Cth).

See section 3.1 above.

3.2.3 When the need for general deterrence is strong

Courts have considered the weight given to good character must be balanced against the need for general deterrence. 8 The Court held in R v Hay [2009] NSWCCA 228 at [128]:

As to good character, whilst it is conceded that Mr Hay was previously of good character, it is put that this is not as significant a matter when the need for general deterrence is strong.

Wood CJ at CL noted in R v Williams [2005] NSWSC 315 at [61]:

[T]he need for general deterrence may displace, to some degree, the benefit which might otherwise attach [to good character], although for the reasons identified in Cameron v The Queen (2002) 209 CLR 339, it is not to be ignored.

See further: Deterrence.

3.3 Categories of offences where good character may carry less weight

There is no closed category of offences for which less weight should be given to evidence of good character: R v Gent [2005] NSWCCA 370, [61]. However, courts have repeatedly indicated that less weight is likely to be given to good character in relation to drug importation, white-collar offences, offences involving child exploitation, and offences committed by public officials.

3.3.1 Drug Importation

Good character has been held to be of limited relevance in drug importation cases as good character may create the impression of legitimacy and enable the offending. 9 In R v Leung [2002] NSWSC 858, the Supreme Court of New South Wales held at [51]:

It has been repeatedly said however, that good character is only of limited relevance in relation to narcotics cases, since its presence is something which syndicates can use to their advantage, in presenting an air of legitimacy to their operations, and in lulling a false sense of security at Customs barriers:  Regina v Ferrer-Esis (1991) 55 A Crim R 231.  However, by parity of the reasoning applied in relation to sex offenders, by the High Court in Ryan v The Queen [2001] 75 ALJR 815, it cannot be entirely dismissed as a mitigating circumstance (emphasis added).

In R v Leroy [1984] 2 NSWLR 441, 446-447, Street CJ (Glass JA and Yeldham J agreeing) explained the rationale for extending less weight in this context as follows:

This court and other criminal courts have said on many occasions that, in the drug traffic in particular, the circumstances that the accused person has a clear earlier record will have less significance than in other fields of crime. Very frequently, those selected to play some part in the chain of drug trafficking, as the appellant plainly enough was, are selected because their records, their past and their lifestyles are not such as to attract suspicion. It is this, in particular, which has led the courts to take in the case of drug trafficking a view which does not involve the same degree of leniency being extended to first offenders.

3.3.2 White-Collar Offences

Good character may have limited weight in relation to white-collar offences. In R v Hall (No 2) [2005] NSWSC 890, Kirby J held at [101]:

Mr Hall is now 66 years old.  He has no relevant criminal convictions.  Ordinarily that would demonstrate good character, which ought to receive some favourable recognition in sentencing.  However, ASIC brought civil penalty proceedings against Mr Hall in 2004.  The matter proceeded before Bergin J.  Her Honour made a number of declarations that Mr Hall had acted dishonestly in the exercise of his powers and the discharge of his duties as a director of companies in the Clifford group.  They are not findings made beyond reasonable doubt.  They are not criminal convictions.  They are not, for the purposes of sentencing, a matter of aggravation (Weininger v The Queen (2003) 212 CLR 629 at 638).  They are, nonetheless, an aspect of Mr Hall’s character and antecedents which show that the offence now being dealt with is not an aberration (cf s16A(2)(m)).  Even were it the case that Mr Hall had good character, that fact would not be a significant mitigating factor in the context of “white collar” offences such as insider trading (R v El Rashid (unreported, NSWCCA, 7.4.95) per Gleeson CJ) (emphasis added). 10

The rationale for good character having less significance for white-collar offences is that, for such crimes, it is generally good reputation and public standing which place the offender in a position where they are able to commit the offence. 11 The court held in R v Rivkin [2004] NSWCCA 7 at [410]:

Subjectively, reliance was placed upon the appellant’s position as a person of hitherto impeccable character and integrity, who had not been previously found to have transgressed any law regulating the securities industry, who had played a significant and active role in community and charity organisations, and who was well respected. His Honour did not overlook that circumstance, it being a matter specifically addressed in the reasons for sentence. However, the relevance of good character is of lesser significance for white-collar crimes, since it is that factor which normally places the offender in a position whereby he or she is able to commit the offenceR v El Rashid, NSWCCA 7 April 1995 per Gleeson CJ at 3 (emphasis added). 12

However Rivkin was distinguished in R v Curtis (No 3) [2016] NSWSC 866 where McCallum J held that good character may be given weight if the offender’s good character did not put them in a better position to commit the offence. It was noted at [35]:

It has been suggested in some cases involving white collar offences that good character is not a significant mitigating factor because it is the fact of good character that places such persons in a position to commit offences of that kind. I do not think that proposition is applicable in the present case, since Mr Curtis was not the insider. His ability to trade on instructions given by Mr Hartman was not enabled by his good standing (emphasis added; footnotes omitted).

However, Mr Curtis’ prior good character was still given reduced weight for two reasons. Firstly, the offences were committed over a lengthy period of time, and secondly, white collar offences call for the imposition of deterrent sentences. 13

In R v Sigalla [2017] NSWSC 52, Mr Sigalla was convicted of twenty-four counts of dishonestly using his position as a director to gain a benefit for himself or a third party. Adamson J found the offender’s prior good character was of less significance because it put him in a position of trust and the offending occurred over an extended period of time which demonstrated a lack of good character. Adamson J stated at [102]:

The offender has, with a minor exception, no criminal record. On this basis he is entitled to be treated as of prior good character. However, this matter is of limited weight in the present context for two reasons. First, had he not been of good character he would not have been placed in such a position of substantial trust with access to such significant funds. Secondly, the offending conduct took place over a period of more than two years in circumstances which demonstrated considerable deception, ingenuity, opportunism and greed (emphasis added).

Note that the Court in Sigalla v The Queen [2021] NSWCCA 22 varied the sentence imposed in R v Sigalla [2017] NSWSC 52 on account of error by the sentencing judge in failing to have regard to the offender’s prospects of rehabilitation.

3.3.3 Child Exploitation Offences

Less weight has been accorded to the otherwise good character of an offender convicted of child exploitation offences as it may create the impression of legitimacy and enable the offending. 14

See further: Child Exploitation Offences

3.3.4 Offences committed in public office

In cases involving the abuse of public office, prior good character is afforded less weight.

In the state sentencing case of Ryan v The Queen [2001] HCA 21, Callinan J noted at [176] that:

The rule that good character is a mitigating factor in sentencing may also be qualified in the case of persons who abuse high public office to commit offences, or use their good character to increase the prospects of successfully completing the crime. 15

In Lee v The Queen [2020] NSWCCA 307, Johnson J (Wright J and Wilson J agreeing) held at [130], [132]:

It is a well-recognised sentencing principle that, in cases involving abuse of public office where the need for general deterrence is especially strong, prior good character is to be afforded less weight than it otherwise would: R v Obeid (No. 12) [[2016] NSWSC 1815] at [94].

In the present case, his Honour was sentencing the applicant for a number of offences and it was open to him to take the view that the applicant’s prior good character was “of somewhat more diminished importance than it would otherwise be” because of the position which he occupied in the Commonwealth Public Service and the offences for which he was to be sentenced.

In R v Gillett [2019] ACTSC 30, Loukas-Karlsson J accepted the Crown submission that significant weight should not be afforded to the offender’s otherwise good character in circumstances where the offences were committed whilst he was employed as a Royal Australian Navy Liason officer, and provided sensitive information to a commercial company with the intention of receiving free meals, accommodation, alcoholic beverages and other entertainment.  Loukas-Karlsson J stated at [42]:

The offender’s prior good character should be given little weight as the offence is frequently committed by those of otherwise good character, and the offender’s prior good character enabled him to gain the position where the offence could be committed.

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  1. Decision affirmed in R v Nuttall; ex parte Attorney-General (Qld) [2011] QCA 120 and Vaysman v Deckers Outdoor Corporation Inc [2011] FCAFC 17. See also Athos v R [2013] NSWCCA 205.
  2. Pfeiffer v The Queen [2009] NSWCCA 145.
  3. R v Gent [2005] NSWCCA 370, [51].
  4. Ryan v The Queen [2001] HCA 21, [35] (McHugh J), [112] (Kirby J), [178] (Callinan J). See also Betka v The Queen; Ghazaoui v The Queen; Hawchar v The Queen [2020] NSWCCA 191, [67].
  5. Considered in Van Der Baan v The Queen [2012] NSWCCA 5 at [32]–[33] and R v Kreutzer [2013] SASCFC 130. See generally Owens v Young [2013] NTSC 49.
  6. Affirmed in R v Anthony James Dickson (No 18) [2015] NSWSC 268, [114]; R v Ly [2014] NSWCCA 78, [86]; Majeed v The Queen [2013] VSCA 40, [39]; R v Issakidis [2018] NSWSC 378, [126]. See also Truong v The Queen [2016] VSCA 228, [36].
  7. Valsamakis v The Queen [2016] NSWCCA 156, [31]; R v Dickson (No 18) [2015] NSWSC 268, [114]; Merhi v The Queen [2019] NSWCCA 322, [52].
  8. DPP (Cth) v Gregory [2011] VSC 145, [53] (Warren CJ, Redlich JA and Ross AJA). See also Kamay v The Queen [2015] VSCA 296, [53].
  9. R v Barrientos [1999] NSWCCA 1, [52]-[57]; Regina v Paliwala [2005] NSWCCA 221, [20]– [25]R v Lee [2007] NSWCCA 234, [14]; Okafor v R [2007] NSWCCA 147, [47]Onuorah v R [2009] NSWCCA 238, [49]. See also Udanna v The Queen (Cth) [2020] NSWCCA 304, [35]; R (Cth) v Wang; R (Cth) v Lin [2013] NSWDC 167, [15]-[18];  Nguyen v The Queen; Phommalysack v The Queen [2011] VSCA 32, [34], DPP (Cth) v Thai [2014] VSCA 122, [14]; Dao v The Queen; Tran v The Queen [2014] VSCA 93, [9]; R v Nguyen; R v Pham [2010] NSWCCA 238[72]; DPP (Cth) v Thomas [2016] VSCA 237, [192].
  10. Affirmed in R v Gent [2005] NSWCCA 370, [59]; and state case Plath v Rawson [2009] NSWLEC 178, [147]. See also R v Loiterton [2005] NSWSC 905, [169]; Ansari v The Queen [2007] NSWCCA 204, [136]. See generally Arora v Cobern [2015] WASC 440, [96].
  11. R v Rivkin [2004] NSWCCA 7, [410]; Xiao v The Queen [2018] NSWCCA 4, [353].
  12. Affirmed in DPP (Cth) v Gregory [2011] VSC 145, [53] (Warren CJ, Redlich JA and Ross AJA); R v Williams [2005] NSWSC 315, [61] (Wood CJ at CL); R v Hildebrandt [2014] VSC 321, [62]; R v Dunn [No 9] [2014] WASC 61, [98]; R v Sakovits; R v Sakovits [2013] NSWSC 464, [44].
  13. See also R v Petroulias (No 36) [2008] NSWSC 626, [207]; Xiao v The Queen [2018] NSWCCA 4, [353]–[354]; R v Falconer [2018] NSWSC 1765, [144].
  14. R v Gent [2005] NSWCCA 370, [65]. Affirmed in R v De Leeuw [2015] NSWCCA 183, [72] (Johnson J); R v Porte [2015] NSWCCA 174, [126] (Johnson J); Heathcote v The Queen [2014] VSCA 37, [46] (Tate JA); DPP (Cth) v D’Alessandro [2010] VSCA 60, [21] (Harper JA); Mouscas v The Queen [2008] NSWCCA 181, [34]–[35]. See also R v Martin [2014] NSWCCA 283, [37]; DPP (Cth) v Watson [2016] VSCA 73, [34]; DPP (Cth) v Guest [2014] VSCA 29, [25]; R v Monaghan [2014] ACTSC 278, [30]; ‘VIM’ v The State of Western Australia [2005] WASCA 233, [321]; DPP (Cth) v Beattie [2017] NSWCCA 301, [208]; R v KB [2019] ACTSC 136, [50]–[51]; R v Yardley [2021] ACTSC 2, [40].
  15. R v Entwistle [2021] NSWDC 159, [38]; R v Obeid (No 12) [2016] NSWSC 1815, [94] (Beech-Jones J) (State sentencing case);