Queensland Sentencing Advisory Council makes 28 recommendations to sexual assault laws

‘Good character’ evidence should be limited and a new aggravating factor for rape and sexual assault offences against children introduced, a new report has recommended. THE RECOMMENDATIONS

There is a fresh bid to protect victims of sexual assault.

‘Good character’ evidence should be limited and a new aggravating factor for rape and sexual assault offences against children introduced, a new report has recommended.

Queensland Sentencing Advisory Council on Wednesday made 28 critical recommendations to the government on how to improve sentencing outcomes for victim survivors of sexual assault.

The Sentencing of Sexual Assault and Rape: The Ripple Effect – Final Report, states that urgent reform should be considered when it comes to the use of ‘good character’ evidence.

“It can be particularly galling to a victim survivor to hear at the time of the sentence that the person who perpetrated sexual harm on them is otherwise a ‘good guy’, a ‘great father’ or a model employee or citizen,” the report states.

“It is even more upsetting when these statements are referred to uncritically by the sentencing judge and magistrate – even if in practice they may be given little weight.”

There could soon be changes to sexual assault offences.

The report found that ‘good character’ evidence was referred to in 91.6 per cent of cases between July 2022 and June 2023.

“A character reference was used in over one-third of cases (35.9 per cent) and was most commonly provided by a family member,” the report states.

“‘Good character’ appeared to be given ‘a lot of weight’ in over a quarter of cases (28.2 per cent).

“The councils review of sentencing remarks suggests that evidence of ‘good character’ is commonly referred to and whether it is mitigating, appears to be used in court to determine the person’s prospects of rehabilitation and risk of offending.”

The report also recommended a new aggravating factor for offences against children under 18 years be introduced.

“We consider that this is the best way to explicitly acknowledge that a victim under 18 years is more vulnerable, the perpetrator more culpable, is to require a court to treat as aggravating the fact that an offence of rape or sexual assault was committed in relation to a child’,” the report states.

The Honourable Justice Ann Lyons. Picture: Liam Kidston

Council Chair, the Honourable Ann Lyons AM, said the report was the result of a 19-month investigation that involved extensive research, analysis of data, case law, and legislation, and significant consultation with stakeholders.

“To gain a deeper understanding of their experiences and perspectives, we engaged with victim survivors, advocates and experts,” Ms Lyons said.

“Our findings revealed that current sentencing practices for sexual assault and rape do not adequately address the needs of victim survivors or align with community expectations.

“Sexual assault and rape are often hidden, underreported, and misunderstood, leaving many in the dark.

“This report aims to shine a light on the issue, providing crucial insights that can inform better decision-making.

“I am confident that this report will serve as a valuable resource for policymakers and practitioners in Queensland and beyond, shaping a more informed and effective response across Australia.”

Sexual assault offences could soon be adjudicated differently.

Council Deputy Chair and Project Sponsor Professor Elena Marchetti said that these measures aim to strengthen the law and send a clear message that sexual violence should not be tolerated.

“A new aggravating factor would require courts to consider rape and sexual assault offences committed against children as more serious forms of offending, supporting higher sentences,” Professor Marchetti explained.

Regarding the use of ‘good character’ evidence, Professor Marchetti said the report recommended limiting its use to specific, relevant circumstances.

“Its use should be limited, and courts should be allowed to disregard it altogether as a basis for reducing the sentence,” she said.

The final report was submitted to the Attorney-General and Minister for Justice and Minister for Integrity Deb Frecklington late last year.

Ms Marchetti said the report addressed the “inadequacy of penalties for rape especially when perpetrated against children”.

“It was felt that in some cases there is insufficient recognition of the significant harm caused by both sexual assault and rape,” she said.

Queensland Attorney General Deb Frecklington. Picture: Supplied

“Unlike many other violent crimes the harm inflicted is often psychological instead of physical but no less impactful. In fact many victim survivors said that it changed almost every part of their lives from how safe they feel and their self-worth to their ability to work, make friends and keep personal relationships.”

Ms Marchetti said victim survivors often said their experience felt like a “life sentence”.

“The impact of sexual offending on children is even more profound,” she said.

Speaking about ‘good character’ evidence in court, Ms Marchetti said: “Suggestions that the person’s actions were uncharacteristic or a temporary lapse in judgement can further undermine the victim survivors’ experience and hinder the offender’s genuine acceptance of responsibility for their actions and the profound harm they have caused”.

“For this reason it is our recommendation that some types of good character evidence for sexual offences be restricted with courts also given discretion to give it no mitigating weight at all.”

Asked about teachers and coaches who are charged with sexual offences against children, Ms Marchetti said: “A lot of the time people aren’t aware of a person’s true character”.

“Because a lot of the portrayal of a person in those situations is about grooming children and family members as well.”

Women’s Legal Service Queensland CEO Nadia Bromley said she believed victim survivors would feel “validated” by the report’s findings including the fact that the penalties imposed for rape are not “adequate”.

Nadia Bromley said the findings would be welcoming by victim survivors.

“That would be so validating for victims across the state because that’s what they have been saying for a long time but I think this is the first time they would have seen it in Queensland from someone with authority, making recommendations to the government,” Ms Bromley said.

“It is one thing for the recommendation to be made, it is another thing for the government to accept them, and it is another thing again for people to see that that’s actually what happens and that we are seeing increased penalties, we are seeing victims that have better journeys, we are seeing victims that are listened to, and get to tell their own stories in their own words.”

Ms Bromley said victim survivors currently felt “silenced and excluded”.

“They feel like they are a secondary consideration that it’s not about them even though the harm has been caused to them.”

Speaking about calls for a new aggravating factor for rape and sexual assault offences against children, Ms Bromley said: “I think the reality is, sometimes the law is really slow to change”.

“People get used to it, (for) people working in the system there isn’t that visibility which is why it’s really important to have really public reviews…the law is supposed to represent community standards and it can’t do that if the community doesn’t even know what it is,” she said.

“Imagine being a victim, someone has been convicted of raping you and you have to sit through document after document talking about he is an amazing person.”

Attorney-General Deb Frecklington has been reached for comment.

Australian child protection organisation Bravehearts said they were concerned the use of good character references was “not adequately dealt with in the recommendations”.

“While the report found that the use of good character references was an area needing urgent reform, recognising the impact of this on victims and survivors, we are concerned that this is not adequately dealt with in the recommendations,” head of research Carol Ronken said.

“Our view is that good character references, typically given by family member or friends, would be of little assistance in helping assess the future desistence from offending. There are more appropriate and accurate ways of assessing prospects for rehabilitation, including (as the report acknowledges) reports from professionals.

“Bravehearts continues to support the #YourReferenceAintRelevant campaign and continues to advocate that in sentencing for sexual offences (particularly against a child) perceived character should not be considered in sentencing.”

The 26 recommendations

1. Sentencing guidance reforms – new aggravating factor for offences against children under 18 years

2. Recognition of victim harm in the sentencing purposes

3. Review of section 9 of the Penalties and Sentences Act 1992

4. Structure of the offence of sexual assault (Criminal Code (QLD) s 352)

5. Reforms to the use of ‘good character’ evidence

6. Resources for courts and legal practitioners

7. Monitoring the impacts of the recommended reforms

8. Reforms to community-based sentencing orders and parole options

9. Access to programs for prisoners on remand

10. Reforms to Serious Violent Offences Scheme

11. Legal Aid funding and guidelines in support of the preparation of specialist reports

12. Court-ordered professional reports and advice

13. Cultural reports

14. Office of the Director of Public Prosecutions and Queensland Police Service – improved communication with victim survivors of rape sexual assault

15. Sentencing remarks for victim survivors

16. Improving support for victim survivors of rape and sexual assault and the criminal justice system’s capacity to respond to victim survivors and perpetrators of sexual violence

17. Resources to assist the courts to respond to the needs of victim survivors of rape and sexual assault with the courtroom

18. Resources and professional development for judicial officers

19. Resources for prosecutors

20. Resources for defence practitioners

21. Comprehensive review of the victim impact statement regime

22. Clarification surrounding the roles and responsibilities of agencies with respect to the preparation of victim impact statement

23. Amendment to section 179K(5) of the Penalties and Sentences Act 1992 (Qld)

24. Review of guilty plea discounts

25. Adult restorative justice program

26. Alternative and complementary justice approaches

27. Improved administrative data surrounding suspended imprisonment sentences and the evaluation of the effectiveness of parole

28. Improving the evidence base for sentencing reform

Originally published as Queensland Sentencing Advisory Council makes 28 recommendations to sexual assault laws