2 September 2020: Offenders of ‘good character’

In the recent matter of DPP v Casey 2020 VCC 878, Desmond Casey, a former teacher, was convicted of sexual offences against three of his students. The offences were committed between 1980 – 1986. His offending against one of his victims, then aged 14, included several incidents of rape. The impact on the victims has been lifelong and deeply traumatising.

The Judge acknowledged that Casey used his standing as teacher in order to commit the offences. He was in a position of trust as a teacher and through his position was able undertake the grooming and secure the trust of each young person, and their families, in order to abuse them.

The defence made submissions that Casey's good character should be considered a mitigating factor and cause a reduction in his sentence.

Section 5(2) of the Sentencing Act 1991 (‘the Act’) sets out the factors that must be taken into account when sentencing an adult in Victoria. ‘Good character’ can be a mitigating factor. Evidence of good character can be objective factors such as an absence of prior convictions, or more moral considerations such as the offender’s reputation and contributions to society (Sentencing Act, section 6).

For child sex offences, section 5AA of the Act requires a court to disregard an offender’s previous good character or lack of convictions, if the court is satisfied this was of assistance in the commission of the offence.

Casey had no convictions prior to the conduct subject of these cases. He also had no convictions or pending matters at the time of sentencing. Should the fact that Casey had not, on the evidence before the court, offended since 1986 be cause for his sentence to be reduced?

 Judge Lyon said,

[71] [A]after the commission of the first crime [in 1980] – you can claim no good character whatsoever.  What you have is the concealment of your abhorrent and despicable criminal offending for 40 years.  If I had any doubt about this then the fact that you kept offending over the next six years extinguishes that doubt. [emphasis added]

[72] In my view the real use of the fact that you have not offended for 34 years [since 1986] is not a question of character but, as Ms Matthews concludes, a factor to be used in the assessment of your prospects for your rehabilitation.

Judge Lyon’s resounding rejection of the offender’s good character should offer comfort to victims. However, good character continues to be used in many other cases to reduce sentences.

‘Character’ is an imprecise concept, open to subjective interpretation. Determining a sanction of criminal conduct should not require a court to consider whether a person is ‘good’ or ‘bad’: an impossible task at any rate, and also an offensive one for the victims of the crime. There are other, better factors which can assist judges in factoring in relevant mitigating factors.

The idea of an offender’s ‘good character’ being a mitigating factor in sentencing is controversial, particularly for sex offenders. If an offender has allowed decades to pass without accounting for their crimes, if they have concealed their crimes while their victims have suffered, could they be said to have such good character that their sentence should be reduced? Furthermore, while an offender may not have been convicted for any subsequent crimes, this does not mean that the offender did not actually commit any more crimes.

Angela Sdrinis Legal is acting in compensation claims for several of Desmond Casey’s victims. If you have been victimised by Casey, who was a teacher at John Paul College, please contact us on 9686 6610.

By Nina Vallins
Solicitor at Angela Sdrinis Legal 

 For further reading on character, see these articles:

Gabrielle Wolf and Mirko Bagaric, ‘Nice of Nasty?: Reasons to Abolish Character as Consideration in Australian Sentencing Hearings and Professionals’ Disciplinary Proceedings,’ (2018) 44(3) Monash University Law Review 567 

Kate Warner, Julia Davis, Arie Frieberg, Caroline Spiranovic and Helen Cockburn, ‘Aggravating and Mitigating Factors in Sentencing: Comparing the Views of Judges and Jurors,’ (2018) 92 Australian Law Journal 74