Mum petitions Parliament to scrap good-character references for paedophiles
Sunday, 5 May 2024
After the sentencing, resentment bubbled away. How could the man who abused her daughter have his sentence reduced by somebody saying ‘Hey, he's a great guy’? A Kiwi mum tells Nikki Macdonald how that anger turned into action.
Shortly after Emma* told the court how her abuser robbed her of a normal teenage life and drove her to self-harm, the judge read out references from the man’s partner and sons.
This was completely out of character, they said. He’s a great dad, and contributes to his community.
Emma’s mum, Sarah*, froze, incredulous.
“I felt like saying to the judge, ‘What do you mean? You've just heard from this little girl. You've actually read out all the things he did. And now you're saying, “on the other hand, but you're a good bloke”.’
“I had this immense physical feeling in my body. It was just, like, crushed.”
Emma was 6 when the abuse started, and it went on for two years. He was a close family friend. A trusted person. Someone of good character. Or so Sarah thought.
So to see his sentence cut by 10% for one of the very reasons he was able to abuse her daughter was too much.
Having discovered a similar campaign in Australia, Sarah has launched a petition to scrap good-character references for paedophiles here.
“I want this law to change. It has to change. We're just one person in thousands that would be affected by it.
“And a lot of these kids that are victims, they don't have the courage to stand up in court, to read their victim impact statement, they are so frigging traumatised. And then, you get those arseholes, getting their sentence diminished, because someone says ‘Oh, you’re a great bloke’. Those kids, their lives will never be the same.“
There’s nothing of good character, when you manipulate a child who trusts you
When deciding an offender’s punishment, judges are guided by the Sentencing Act.
From a starting point based on similar crimes, they adjust the sentence up or down to factor in aggravating or mitigating factors. An offender might get a discount for youth and a guilty plea, but then have time added on because of the number of victims or the violent nature of the offences.
“Evidence of the offender’s previous good character” is one of the act’s 10 potential “mitigating factors”.
That’s where good-character references come in. They’re usually support letters from people who know the offender, extolling their generosity, trustworthiness or good works in the community.
In Emma’s case, the judge acknowledged that the offending was a breach of trust of a vulnerable autistic girl.
He refused to release the character references provided, but his sentencing notes show he agreed with them that the abuse was “out of character”, despite it spanning two years.
He gave a 10% sentence discount “for an offence-free life and contribution to the lives of your children, your partner, your sporting colleagues, the schools that you have had association with, all of whom say that you were a valuable member of the world that you and they live in”.
To Sarah, the process was appalling. It wasn’t until Emma was 13 that she found the courage to tell her mum what happened. Her abuser initially pleaded not guilty, sparking a torturous two-year pre-trial process.
As Emma said in her victim impact statement at the March 2022 sentencing, her anxiety escalated, she stopped going to school and started self-harming.
“Hurting my own body was an easier way to deal with and control what was happening, than what I have been through.
“He not only tormented me when I was younger through harming me, he continues to emotionally torment me and my family. He’s in my head, I see him, I hear him, I smell him, I feel afraid… He changed me and I don’t feel I can change back.”
To then hear the judge give credit for good character left Sarah dumbfounded.
“There’s nothing of good character, when you manipulate a child who trusts you, and you use that over them.”
They’re just some random stranger saying ‘I know this person, he is a good person’
When Dilworth School abuse survivor Neil Harding tuned in to the sentencing of one of the school’s serial abusing teachers, the character references hit him hard.
“It’s so invalidating. It’s a gut punch… By giving a character reference, they are in a way speaking against the victim.”
Harding “absolutely” supports Sarah’s petition to scrap character references in child sex abuse cases.
“When you hear someone giving a character reference against someone that has been accused of doing things to you, and they’ve got no idea. They’re not a witness; they weren’t there. They’re just some random stranger standing up saying ‘I know this person, he is a good person’. Well, who are you? It’s completely irrelevant.”
In several Dilworth abuse sentencing hearings, the judge rejected pleas for good-character discounts, because the offending involved multiple victims or continued over several years.
In the case of Ross Browne, who was initially convicted of abusing 14 boys over 15 years, Justice Toogood said “It is simply not possible to conclude, however, given the length of time over which you offended, the gross breach of trust and the predatory, pre-meditated nature of your offending, that you deserve any credit for good character”.
But Dilworth scout leader and tutor Graeme Lindsay got a 15% sentence discount in recognition of his reintegration and rehabilitation efforts, lack of offending since 1982 and contributions to society, “evidenced by the letters of support”.
One complicating factor with child sex abuse cases, is that offences often don’t come to light until years later, so offenders claim credit for their blameless life since.
An often-cited example is Olympic hockey gold medallist Arthur Parkin. It was 37 years before his victim, Jenny*, finally went to court.
Just 12 when Parkin ‒ a family friend ‒ touched her genitals and made her hold his erect penis, she didn’t speak out for fear of getting in trouble.
At Parkin’s sentencing in 2018, 70 character references were filed in support of a sentencing reduction, including one from then Masterton District Council chief executive Pim Borren, on council letterhead.
The letters called Parkin “caring and considerate”, “a good and loyal friend”, and told of his generosity in time and money, and arranging golf with a widower to keep his spirits up.
While the knowledge of so many character references was nauseating enough for Jenny, the resulting two-month good-character discount then became the basis for an appeal.
The Court of Appeal found the support letters showed “compelling evidence of good character, exhibited over a long time”, and doubled the original sentence discount to four months.
To Jenny, that’s “highly offensive”.
“It’s a way of saying, well, actually, what happened to you wasn’t really all that bad, because this person became a good person. So your suffering is really negated.”
At 55, she still has to live with the impacts of Parkin’s abuse. Her life sentence will never be reduced, so she doesn’t see why his should have been.
“Sexual abuse is an unseen pit of hell. We’re not missing a leg or an arm or have a deformed face from an accident, to remind people what we’ve been put through. It’s often hidden, so there’s nothing to tell people that you are broken inside.
“So for someone to have a lesser consequence, purely because of good character, it’s unacceptable.”
Shine Lawyers special counsel Mobeena Hills, who has represented victims of historical abuse in civil cases in both New Zealand and Australia, is aghast that convicted paedophiles can plead good character to get sentence reductions.
“From my perspective, those two words in the same sentence are just not compatible.”
However, not all victims support Sarah’s petition.
Lower Hutt lawyer Chris Nicholls, who is also a survivor of childhood sexual abuse, believes sentencing issues should be left to the judge to weigh.
“Just because people do bad things in one aspect of their life doesn’t mean that other good things in their life should not be considered… I just think it’s utterly wrong to say that they shouldn’t be able to put references up about themselves.”
Your reference ain’t relevant
Both Harding and Jenny use the word “irrelevant” when describing character references from people unconnected to the crime.
That’s also the basis for Australia’s Your Reference Ain’t Relevant campaign, which sparked Sarah’s petition.
Harrison James says he was groomed and sexually abused by his stepmother from 13-16. While his case never went to court as his stepmother fled the country, he was so appalled at the idea that abusers could use good-character references to get reduced sentences, it motivated him to start a nationwide campaign to axe them.
Eleven months on, New South Wales is reviewing its law.
James argues good character is “a weapon amongst a child sex offender’s arsenal of deceit”, because no parent would leave their child with someone they didn’t think was good and safe.
Character references “perpetuate the myth of the good abuser”, he says.
“Character references are not just benign testimonials, they are insidious tools used to whitewash the perpetrator’s actions.”
James says changing the law, for child sex abuse survivors, would “mean everything”.
“Removing these good-character references is not the silver bullet to make everything right… But it is going to let people know that, we have to focus solely on the offending, rather than the supposed virtue of these individuals.”
The legal pros and cons
Any talk of blanket bans makes Auckland barrister David Stevens nervous.
Sentencing is always a balancing act, and good character is just one of many mitigating and aggravating factors judges weigh when deciding on a sentence.
While the issue is “tricky”, and he acknowledges how hard it must be for victims to hear praise of someone who did abhorrent things to them, he believes character references do serve a purpose.
“To not allow a judge to have awareness of the rest of somebody’s life could lead to unjust outcomes in some circumstances… Because people do bad things, they’re not wholly bad.”
However, judges often reject good-character discounts where offending carries on over a long period or involves multiple victims, as it’s then hard to argue the crimes are out of character, Stevens says.
“The judge is usually in a good position to balance the competing factors… Oftentimes, they’ll put evidence of good character to one side in inappropriate cases, and in some cases credit is given.”
Stevens also questions the justification for treating child sex crimes differently from other crimes with ongoing impact, such as murder, serious and domestic violence.
“It is potentially problematic to apply a particular barrier or blanket prevention in respect of one type of crime, when other crimes are also devastating for the people involved.”
Victoria University law lecturer, Danica McGovern, believes there is a case for rejecting good-character discounts for long-running abuse, and where the offender’s perceived good character helps facilitate the offending. For example, where it reassures parents that they’re a safe person to leave their child with.
That’s also relevant to some family violence and fraud cases, she says.
Stevens points out that can already be factored in to sentencing, with abuse of trust listed as an aggravating factor under the Sentencing Act.
New South Wales already has a law preventing child sex offenders claiming credit for good character and lack of previous convictions, if those factors helped them commit the crime.
But James says that creates two classes of victims, and offenders. He says perceived trustworthiness always helps enable the crime, whether the abuser is a community leader or a family friend.
“Good character is still part of the crime. They’re utilising it to get in contact with the children, no matter their good standing in the community.”
Wellington Crown Prosecutor Sally Carter has not encountered a lot of child sex abuse cases where character references were relied on. Where they are used, the weight given to them usually depends on the kind of offending.
A one-off crime by someone with no prior convictions and positive references will inevitably get a sentence discount. But someone saying good things about you now is unlikely to offset offending spanning 20 years.
She can’t comment on whether the law should be changed, but acknowledges how difficult it is for victims to listen to character references.
“We try and have discussions prior to sentencing so they understand the process. But that doesn’t lessen how egregious it feels to be hearing all these wonderful things being said about someone who’s offended against you.”
However, there’s no easy answer, as the reasoning for sentences needs to be disclosed in open court, Carter says.
“It would be wrong for a judge to be given information secretly around how good the defendant is and people not being able to respond to it.”
Justice Minister Paul Goldsmith says he has no current plans to change the sentencing legislation “as I am currently focused on our coalition commitments to restore law and order”.
Neither the Criminal Bar Association nor the Defence Lawyers Association responded to requests for comment.
Reclaiming your life
Now 18, Emma is doing well. Sarah is adamant she won’t be defined by her childhood abuse.
Nothing can change what their family went through. But Sarah hopes her petition can make a small change for other whānau.
“If the legislation could be changed, and that would be such a self-esteem boost to all these victims, that the justice system really values them.”
*Names changed for legal reasons.
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