Ahead of proposals to ban character references in WA criminal trials, the state's chief justice says they can help judges understand an offender's prospects of rehabilitation.
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Peter Quinlan said judges already use careful discretion when considering 'good character' references.
What's next?
The legislation to ban character references has yet to be drafted and will be subject to consultation.
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While the WA government has announced plans to ban character references in criminal cases, the state's chief justice says there are occasions when references help judges understand more about an offender.
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The government's proposal would prevent convicted criminals from offering good character references from family, friends and colleagues to reduce their sentences.
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The move comes after revelations three Western Power staff provided references to a senior manager who was jailed for raping a former colleague on a work trip.
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Chief Justice Peter Quinlan told Nadia Mitsopoulos on 102.5 ABC Perth that the legislation had not yet been drafted and would be subject to consultation.
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"I think that it's something that needs to be carefully considered," Justice Quinlan said.
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"It's not for me to publicly agree or disagree with government policy.
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Whatever the law is, is what the courts will implement.
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He said judges already exercised careful discretion when it came to considering 'good character' references.
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It's not as if you're given a character reference by somebody and a judge thinks, 'oh, this makes all the difference',"he said.
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"There are some kinds of offences for which having a good reputation in the community might actually make the offending worse.
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A child sex offender who has got a fantastic reputation as a great teacher, for example … well, their reputation as a great teacher may be the very thing that has enabled them to offend.
"
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In cases like that, it's hardly going to be of any assistance to a judge to hear that somebody had a great reputation in other parts of their lives."
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Seeing the human behind the crime
But he described other cases where learning more about an offender, from someone who knew them, had assisted the court to understand an individual's likelihood of rehabilitation.
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He described a case he presided over of a young offender who had seriously injured another person in a fight outside a pub, where the prosecution was arguing for immediate imprisonment.
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"I remember that case because the young man's employer came along to court, and gave a character reference that was really saying, 'this young fellow has been working with me.
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I've talked about that incident with him at great length.
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He really is somebody who could really work with me to get better'," he said.
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"And the prosecution in that case said to me, the judge, 'we've changed our position'.
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'We say that this is a case where this young man could be put on a suspended sentence, so a prison term, but which was suspended with conditions, because there was something about this fellow that we wouldn't have learned from anyone else other than this person who knew him really well."
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He said there were times when references could tell a sentencing judge what kind of support structures an offender had around them.
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"There's nothing better, I think, than seeing a reference from somebody who says, 'I think that the offence that my son or my nephew committed was horrendous and I've told him so, but I'll be there to support him', so that you know that there are better prospects," he said.
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I think we need ways to be able to get at the human being behind the offending.
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[With] some kinds of offending, that's not going to matter because some sorts of offending are so serious that it doesn't really make a difference what your personal circumstances are.
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But we've got to remember that there's a vast variety of circumstances that come before the courts."
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The Aporia