Craig Caldicott OAM was recently on ABC Radio Adelaide’s Breakfast program with Sonya Feldhoff and Jules Schiller to discuss the Attorney General’s proposal to abolish character references as part of the sentencing process.
Drawing on more than 40 years of experience in criminal law, Craig explained why character references can play an important role in ensuring sentencing judges have a complete picture of an offender, particularly when rehabilitation is an important consideration.
Craig described the proposed abolition of character references as “a step back”, arguing that removing them could make it more difficult for courts to properly assess an individual’s circumstances and prospects of rehabilitation.
What is the role of a character reference?
Character references are generally provided to the court during the sentencing process. They are intended to give the sentencing judge or magistrate additional information about the person before the court, including their background, character and prospects for rehabilitation.
Craig explained that a person providing a character reference is expected to understand what has occurred and to address the reference appropriately to the sentencing judge or magistrate.
For Craig, this is an important part of ensuring the court has as much relevant information as possible before determining an appropriate sentence.
“Our view is that this is part of the rehabilitation process.”
A character reference can provide information about an individual that may not otherwise be apparent from the formal court documents.
Balancing the interests of victims and defendants
During the interview, ABC Radio Adelaide raised the concern that character references can appear particularly difficult for victims and their families to hear.
In serious cases, such as assault or murder, hearing that an accused or offender is otherwise regarded as a “good” person can seem difficult to reconcile with the circumstances of the offending.
Craig acknowledged the importance of the victim’s perspective but explained that sentencing requires a judge to consider information from all sides.
Victims can provide victim impact statements, and their relatives and friends may also have the opportunity to provide information to the court. The prosecution presents its case, while the defence has the opportunity to put forward material on behalf of the person being sentenced.
Craig emphasised that the purpose of a character reference is to provide the sentencing judge with additional information when determining an appropriate penalty.
The importance of having all relevant information before the court
A central point raised during the interview was that sentencing is an exercise in balancing competing considerations.
Craig explained that the court may consider a range of material when determining an appropriate sentence, including character references, reports, criminal history and psychological assessments.
The purpose of character references is therefore not necessarily to excuse the offending, but to help the court understand the person who has committed the offence.
As Craig explained, the sentencing judge needs to have as much relevant information as possible before making what can be an extremely significant decision.
The potential impact on criminal defence lawyers
Craig was also asked whether abolishing character references would make the work of criminal defence lawyers more difficult.
He explained that it would, because lawyers would potentially need to spend considerably more time before the sentencing judge explaining the person’s background and circumstances.
Rather than presenting that information through character references, more of the relevant context may need to be explained orally during sentencing submissions.
Craig suggested this could make the sentencing process longer and potentially more cumbersome.
Do character references actually affect sentences?
The answer, according to Craig, is that sometimes they do and sometimes they do not.
The significance of a character reference will depend on the circumstances of the individual case and the other information available to the sentencing judge.
The important point, however, is that sentencing judges should be able to consider all relevant information before determining the appropriate penalty.
A character reference may form one part of a much broader body of material that can include the person’s criminal history, reports and psychological assessments.
Ultimately, it is the sentencing judge who determines what weight, if any, should be given to that information.
Character can matter differently depending on the offence
The interview also considered some of the most serious offences, including murder and domestic violence.
Craig acknowledged that in extremely serious matters, a person’s character may have considerably less influence on the ultimate sentence.
For example, where mandatory or minimum sentencing provisions apply, the scope for a character reference to affect the outcome may be limited.
However, Craig distinguished these cases from matters involving less serious offending, particularly where an otherwise law-abiding person has committed an offence that may be an isolated incident.
In those circumstances, information about the person’s background, character and prospects of rehabilitation may be more significant when the court considers what sentence is appropriate.
An ongoing conversation about sentencing reform
The proposal to abolish character references raises broader questions about the role of rehabilitation, the rights of victims and the information available to sentencing courts.
Character references do not determine a sentence, nor do they erase the harm caused by an offence. Rather, they are one piece of information that may assist a sentencing court in determining what penalty is appropriate in the circumstances of the particular case.
As South Australia considers potential changes to the sentencing process, the debate highlights an important question: How can the justice system ensure that victims are heard while also giving courts the information they need to assess punishment, rehabilitation and the appropriate sentence?
