Last Updated: 14 November 2009

List of subheadings:

Definition of Character and Antecedents
Scope of s 16A(2)(m)
- Situations where Good Character and Antecedents May Carry Less Weight

Commentary on Character and Antecedents under the Crimes Act 1914 (Cth)

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

Definition of Character and Antecedents

• ‘Character’ has been interpreted broadly to encompass a variety of factors.

In R v Gent [2005] NSWCCA 370; (2005) 162 A Crim R 29, Johnson J (with whom McClellan CJ at CL and Adams J agreed) 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…

However, in Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267, 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.

In determining whether the offender is of good character, the sentencing judge must not take into account the offences for which the offender is being sentenced: Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267, [36].

• ‘Antecedents’ has also been interpreted broadly to encompass various factors.

Commissioner of Taxation v Baffsky [2001] NSWCCA 332; (2001) 122 A Crim R 568, concerned an application to discharge without conviction under s 19B of the Crimes Act 1914 (Cth). In relation to the term ‘antecedents’ in s 19B(1)(b), Spigelman CJ endorsed the following statement from Jones v Morley (1981) 29 SASR 57:

The word 'antecedents' is 'as wide as can be conceived'; R v Vallett [[1951] 1 All ER 231], per Lord Goddard CJ at p232. It's certainly wide enough to include all aspects, favourable and unfavourable, of an offenders background, past life, personal, family, social, employment and vocational circumstances, and of his current way of life and its inter-action with the lives and welfare of others.[1]

In Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465, 477, a decision concerning the Crimes Act 1900 (NSW), the majority commented:

…the antecedent criminal history of an offender is a factor which may be taken into account in determining a sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. ... The antecedent criminal history is relevant, however, to show whether the offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law.

The Australian Law Reform Commission in its report (Same Crime, Same Time) noted that ‘antecedents’ is a broad term encompassing relevant facts and circumstances of the offender’s history and background as well as the offender’s antecedent criminal history. [2]

In Weininger v The Queen [2003] HCA 14; (2003) 212 CLR 629, Kirby J, 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.

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Scope of s 16A(2)(m)

Section 16A(2)(m) states evidence of character and antecedents that is relevant and known to the court must be taken into account.

In Ryan v The Queen, 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’: [2001] HCA 21; (2001) 206 CLR 267, [35] (McHugh J); [112] (Kirby J); [178] (Callinan J). Justice Kirby 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.

The weight attributed to character and antecedents will depend on all relevant circumstances and particularly the nature of the offence committed: R v Gent [2005] NSWCCA 370; (2005) 162 A Crim R 29, [51].

In R v Gent, Johnson J (with whom McClellan CJ at CL and Adams J agreed) cited the following passage from McHugh in Ryan v The Queen:

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. [3]

The rules of evidence do not govern the receipt of information concerning character and antecedents at sentencing.

In Weininger v The Queen [2003] HCA 14; (2003) 212 CLR 629, a majority of the High Court noted at [21] that:

…the 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.

See also Ryan v The Queen where Kirby J commented at [102]:

The rules governing the receipt of evidence pertaining to good character at the foregoing stages in a criminal trial are quite distinct. This is because their purposes are different. It is a mistake of principle to confuse them. In the trial the evidence of character relevant to the issue of guilt is subject to various restrictions and consequences. 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.

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: Pfeiffer v The Queen [2009] NSWCCA 145.

In Pfeiffer v The Queen [2009] NSWCCA 145, McClellan CJ at CL (with whom Simpson and Buddin JJ agreed), considered the sentencing judge to have erred in deeming the offender to be of bad character for reason of several minor offences that were otherwise ‘given little if no weight.’ McClellan CJ at CJ 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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situations where good character and antecedents may carry less weight

Less weight is usually given to good character where the offending has occurred over an extended period.

In Ryan v The Queen, 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.

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; (2005) 162 A Crim R 29, [61].

The following categories have been identified by the courts:

i) Drug Trafficking

ii) White-collar Offences

iii) Child Sex Offences

 

i) Drug Trafficking

Good character has been held to be of limited relevance in drug importation cases: R v Leung [2002] NSWSC 858; (2002) 134 A Crim R 187, [51]; R v Paliwala [2005] NSWCCA 221; (2005) 153 A Crim R 451.

In R v Gent [2005] NSWCCA 370; (2005) 162 A Crim R 29, [55], the Court cited with approval the following passage from R v Leroy [1984] NSWLR 441 that explains the rationale for reduced emphasis on good character:

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.

ii) White-Collar Offences

The weight given to good character has been reduced in relation to white-collar offences: R v Hall (No 2) [2005] NSWSC 890, [101]; R v Loiterton [2005] NSWSC 905; (2005) 54 ASCR 728, [169].

The rationale for good character having less significance for white-collar offences is that, for such crimes, it is generally character and public standing which place the offender in a position where they are able to commit the offence: R v Rivkin [2004] NSWCCA 7; (2004) 59 NSWLR 284, [410].

See also R v Petroulias (No 36) [2008] NSWSC 626, [207].

iii) Child Sex Offences

Less weight has been accorded to the otherwise good character of an offender convicted of child sex offences.

In R v Gajjar [2008] VSCA 268, [27], the Victorian Court of appeal held it was open to the sentencing judge to give less weight to prior good character and emphasise general deterrence in relation to an offender convicted of procuring for sexual purposes. However, the Court noted at [28]:

That is not to say that less weight is to be accorded to good character in any absolute sense. It is rather to recognise that, when greater weight is attached in the balancing process to general deterrence, it necessarily follows, at least in a relative sense, that less weight will be accorded to what might otherwise be significant mitigating factors.

Similarly, in R v Gent, the Court distinguished the applicant sentenced for importation of child pornography as he was not in a direct relationship of trust with the child and the offence did not require him to be of good character. [4]

See also Walker v The Queen [2008] NTCCA 7, [32].

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Footnotes

[1] Commissioner of Taxation v Baffsky [2001] NSWCCA 332; (2001) 122 A Crim R 568, [27] (Spigelman CJ with whom Simpson J and Einfeld AJ agreed) citing Jones v Morley (1981) 29 SASR 57, 63-65 (King CJ with whom Jacobs and Mohr JJ agreed).

[2] Australian Law Reform Commission, Same Crime, Same Time: Sentencing of Federal Offenders, Report 103 (2006), [6.52], citing the Law Council of Australia's Submission to the Commission on 17 March 2006.

[3] R v Gent [2005] NSWCCA 370; (2005) 162 A Crim R 29, [53] citing Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267, [33] (McHugh J).

[4] R v Gent [2005] NSWCCA 370; (2005) 162 A Crim R 29, [65]-[66].