Questions have arisen in relation to the rules around the use of character references in sentencing following news last week that an old letter of reference was provided to the court sentencing child-sex offender Jeffrey "Joffa" Corfe without the knowledge or permission of the author.
On 10 March 2023, the Herald Sun reported that Jeremy Maxwell, a former manager of the Epilepsy Foundation, was not aware that a letter of reference that he had written for Corfe in May 2021 had been submitted as part of the sentencing process. Maxwell said that at the time when he wrote the reference, he was not aware of the allegations against Corfe.
When asked about the story at a press conference, Premier Daniel Andrews said that some changes to the rules around character references in sentencing may be needed.
"Perhaps we do need to make sure that, when people are vouching for others or people are handing up material, it is as contemporary as possible," Andrews said.
What is a character reference and how is it used in sentencing?
A person is not defined by their offending and their offending is not the only thing the Court needs to hear about at a sentencing hearing
When a person is being sentenced, the court may consider a number of factors, including the nature of the offence, the defendant's criminal history, and their personal circumstances. A character reference is one such factor that the court may take into account. The reference is usually a written statement from someone who knows the defendant well, such as a family member, friend, or employer. Almost always such references are dated. To be useful, references need to specify that the author is aware of the charges to which the person is pleading guilty or has been found guilty of. A reference that does not contain such an acknowledgement is likely to be given almost no weight at all by the sentencing judge.
Ultimately, the court will decide whether to consider the character reference and how much weight to give it in the sentencing decision. While a character reference can be a helpful tool in sentencing, it is important to remember that it is just one of many factors that the court will consider in making its decision.
Should a character reference be aware of the charges?
There is no legal requirement that character references be aware of criminal charges. However, it is generally considered best practice for character references to be made aware of any criminal charges that the person they are providing a reference for is facing.
Character references can potentially be viewed unfavourably by the court if the person providing the reference appears not to be aware of the charges.
Courts will generally take the view that in order to enable the person providing the reference make a full and fair assessment of a person's character, they should be aware of the substance of their offending.
The court generally views character references that acknowledge the charges but still provide evidence of the good character of a person favourably. Character references can be valuable evidence for the court in assessing character and potential for rehabilitation, and it is generally a positive sign if someone is willing to vouch for your character despite knowledge of the charges you are facing.
Additionally, if the person providing the character reference is not aware of the charges against you, it could raise questions about the authenticity and relevance of the reference. Furthermore, if the court becomes aware that you deliberately withheld information about the charges in order to persuade the person to provide the reference, it could potentially harm your credibility and may negatively impact your case. It's always best to be honest and transparent with the court and to seek out references from individuals who are truly able to vouch for your character and behaviour.
Moreover, if a person provides a character reference without knowledge of the charges, they may feel a legitimate sense of grievance if they later become aware that their letter was used as evidence in a sentencing process. They may feel that they were misled or that they provided a reference under false pretences, or that it reflects poorly on their judgment and credibility if it later becomes known that they vouched for the good character of someone facing serious criminal charges.
Therefore, while it is not necessarily a legal requirement, it is strongly recommended that character references be fully informed about any criminal charges so that they can provide a well-informed and balanced assessment of the person's character and conduct.
Can character references pre-date the charges?
Again, this is not a legal requirement, however it is generally best practice for similar reasons.
It is possible to rely on a character reference that pre-dates the charges, such as an old letter of recommendation from an employer that was provided for employment purposes rather than sentencing purposes. The fact that a reference is dated or old, if known, should be pointed out explicitly to the Court.
However, the weight given to a character reference of this nature would depend on a few factors. The relevance of the letter to the specific circumstances of the case will be important. If the letter is several years old and was provided for employment purposes that are not directly related to the charges you are facing, it may be less relevant to the case and carry less weight as evidence.
If you intend to use an outdated letter of reference in sentencing, it is generally advisable to seek the author's permission before doing so. This is because the author of the letter may no longer hold the same opinion or may not want their letter to be used in the current context.
Should there be stricter rules around character references?
For the reasons outlined above, it is generally best practice for character references to be current (that is, written some time after the charges have arisen), informed (as to the charges and the circumstances of offending) and truthful (not containing information that contradicts other evidence in the case).
However, there are good reasons why these 'best practice' principles are not enshrined in law.
Firstly, it is the role of sentencing courts to scrutinise character references, and to decide whether and how they ought to be taken into account in sentencing. The fact that a character reference predates criminal charges, or the charges aren't referenced in the letter, would generally be a matter that the court would have regard to.
In some cases, a character reference may even do more harm than good if it includes information that contradicts other evidence presented in the case or if it appears to be an attempt to minimize the seriousness of the offense or to influence the court's decision.
Our lawyers carefully consider all character references before presenting them to a sentencing court, to ensure that they cast the person being sentenced in the best possible light without straying into any suggestion of misleading the court.
Secondly, if a person were prevented from relying on a character reference, this could place unfair limitations on the ways in which they can defend themselves.
For example, a person may want to rely on a reference from a representative of an organisation where they have done some volunteering as evidence of their past good character and community involvement. Depending on the circumstances, it might not be important that the referee be aware of the charges the person is facing so long as this is made clear to the Court.
Another point is that if character references were required to make sworn statements in the nature of statutory declarations, this could make it more difficult for a defendant to gather evidence in support of their plea.
Finally, although dishonesty can occur, it does so rarely and references are an important and efficient way of informing a court about the broader characteristics of a person.
