20. Character Evidence — ss 109–112 (Vic)¶
Scope and currency
Reference sheet · Evidence Act 2008 (Vic) ss 109–112 + Jury Directions Act 2015 + Sentencing Act 1991 (Vic) s 5AA (plea) · featured authority Browne v The King [2024] VSCA 194
A defence tool with a sting in the tail. An accused may put their good character in issue to argue they are unlikely to have committed the offence — but that can open the door to rebuttal, so it must be run with care. Just as important: failing to run good character that was available can itself sink a conviction (Browne v The King [2024] VSCA 194, featured below). This sheet runs from what character evidence is through to the jury direction.
Start here — what is character evidence?¶
The idea: evidence "in disproof of guilt" — the accused adduces their favourable character as a fact making it unlikely they committed the crime. An unblemished reputation founds a presumption that the person is "incapable of committing the crime" charged (Attwood v The Queen (1960) 102 CLR 353).
What raises it: anything to the effect of "I'm not the sort of person who would do this" — expressly or by implication. It is easily and often unwittingly triggered (R v Rihia [2000] VSCA 235). It includes general opinion evidence about the accused's character (Bishop [2013] VSCA 273): no prior convictions, "not the type", or good character in a defined respect (e.g. no dishonesty priors; respectful to women when affected by alcohol).
The big shift — divisibility: at common law character was indivisible — claim it at all and your whole record came in. The UEA (ss 109–112) makes it divisible: an accused may claim good character generally or in a particular respect, and the prosecution's rebuttal is confined accordingly (s 110(3); Bishop). The Part applies in criminal proceedings only (s 109).
The mechanism (s 110): putting good character in issue switches off four exclusionary rules — the hearsay, opinion, tendency and credibility rules — for that evidence, so both sides may prove or rebut character by means otherwise unavailable (including general opinion). Rebuttal is symmetrical: general claim → general rebuttal (s 110(2)); particular respect → rebuttal in that respect only (s 110(3)).
Double-edged — handle with care
putting character in issue "can be dangerous and should be done very carefully" — it can open otherwise-inadmissible rebuttal. But the greater practical risk is the opposite: not leading good character that was available, or not seeking the direction, is a recurring and successful appeal ground (Browne; Ho; Saw Wah).
The statutory framework¶
| Provision | Effect |
|---|---|
| s 109 | The Part applies in criminal proceedings only. |
| s 110(1) | The four rules do not apply to evidence adduced by the accused to prove — directly or by implication — good character generally or in a particular respect. |
| s 110(2) | If general good character is admitted, the rules do not apply to rebuttal that the accused is not generally of good character. |
| s 110(3) | If good character in a particular respect is admitted, rebuttal is confined to that same respect. |
| s 112 | The accused must not be cross-examined on character matters without leave (weigh the s 192 factors) (Stanoevski). |
| s 192A | Advance ruling — the mechanism for finding out what rebuttal will be allowed before you commit. |
The decision sequence¶
GATE 1 Has the accused raised good character? (s 110(1))
Anything, express or implied, to the effect of "I'm not the sort to do this"? See What raises it above. Caveat: emphatic denials ("I have never…") may be merely the emphatic manner of giving evidence, not a conscious decision to put character in issue (Hughes (a pseudonym) v The Queen [2013] VSCA 338). → Raised: the hearsay, opinion, tendency and credibility rules do not apply to the accused's good-character evidence (s 110(1)) → Gate 2. → Not raised: no character in issue; the prosecution cannot lead rebuttal character evidence.
GATE 2 General, or in a particular respect? (s 110(1))
How widely has good character actually been claimed? → Generally — s 110(2): once admitted, the four rules also do not apply to evidence that the accused is not generally of good character → the prosecution may rebut with general bad character. → In a particular respect — s 110(3): rebuttal is confined to that same respect (Bishop: "no priors for dishonesty" does not open up priors for violence).
GATE 3 Does a particular-respect claim create a false impression?
Is the accused artificially confining character to dodge rebuttal? Divisibility is not unlimited. The judge assesses how far character is really raised, on the evidence and the circumstances of the alleged offence. → Offence inherently wider: rebuttal is not confined. Adducing specific character evidence might still permit the Crown to introduce related prior convictions if failing to do so would leave the jury with a false impression of the accused's character: R v Omot [2016] VSCA 24: on a violent rape, "no prior sexual offences" opened the accused's prior violence convictions — rape is inherently violent, so the narrow claim created a false impression. → Divided by time: character "cannot be divisible by years or time"; claiming good conduct in an isolated period exposes the whole relevant past (R v Rihia).
GENERAL good character — what has been led¶
| Case | What was adduced |
|---|---|
| Melbourne v The Queen (1999) 198 CLR 1 | No previous convictions (other than a 20-year-old drink-driving matter) and that he was not "adversely known to the police"; plus lay opinion and reputation evidence describing him as "amiable", "quiet", "gentle" and a "well-behaved gentleman" who was never "aggressive". |
| Simic v The Queen (1980) 144 CLR 319 | On a murder charge: no priors, happily married with children, never violent to his wife or children, and a satisfactory employee. |
| Baker (a pseudonym) v The King VSCA 87 | No previous convictions plus character references speaking positively to his character generally, and specifically to his conduct as a family man and father. |
GOOD CHARACTER IN A PARTICULAR RESPECT — what has been led¶
| Case | The particular respect | The point |
|---|---|---|
| Schmidt v The King [2024] VSCA 256 | That the accused behaved respectfully towards women, including when affected by alcohol. | The trial judge wrongly rejected this as inadmissible opinion. The Court of Appeal held it was admissible good character in a particular respect, and its exclusion was a substantial miscarriage of justice. Also admitted: entry to the Australian Defence Force, no convictions, and a reputation for being "very honest" and trusted "immensely". |
| Ho v The King [2025] VSCA 150 | No criminal history of violence — on a manslaughter trial. | Despite pleading guilty in front of the jury to cultivating a commercial quantity of cannabis, he remained entitled to lead good character as to violence, to argue the stabbing was not intentional. Admitted criminality in one respect does not forfeit character in another. |
| R v PKS (1998) | Good character in respect of young children. | On sexual offences against a minor, character was successfully confined to the relevant class of conduct. |
| R v Zurita NSWCCA 22 | No antecedent sexual offences. | Charged with aggravated sexual assault of his stepdaughter, with priors for larceny, assault and driving. He could still raise character in that particular respect — the unrelated priors did not bar it. |
Define the "particular respect" carefully — the Omot trap
in Omot v The Queen [2016] VSCA 24, an accused charged with a violent rape sought to lead that he had no priors for sexual offending. The trial judge correctly ruled this would open the door to his prior convictions for violence — because the charged offence inherently involved violence, confining the character claim strictly to "sexual" history would create a false impression for the jury. Match the respect to the true nature of the charge.
The forensic risk & how to manage it¶
| Step | Practice point |
|---|---|
| Weigh the risk | Good character can be decisive — but raising it lets the prosecution seek leave to cross-examine the accused or lead rebuttal that they are not of good character (ss 110(2), 110(3), 112). |
| Make it a deliberate decision | Character must be raised consciously. Emphatic denials in cross-examination (e.g. "I would never do that sort of thing") do not ordinarily amount to adducing character evidence. |
| Get an advance ruling (s 192A) | Because rebuttal bad-character evidence is severely prejudicial, seek a ruling before leading it — determine precisely what, if anything, the prosecution will be permitted to adduce. |
| Request the directions | If good character is admitted, request the directions under the Jury Directions Act 2015. The judge must direct that the jury may use it both on the likelihood the accused committed the offence and, where applicable, on the credibility of the accused's in-court testimony or out-of-court representations. |
GATE 4 Is the prosecution's rebuttal actually relevant?
Does the rebuttal sensibly affect guilt or credibility? No carte blanche. The Crown cannot lead discreditable matter that does not sensibly bear on the likelihood of guilt or on credibility — Saw Wah v The Queen (2014) 45 VR 440: irrelevant subsequent traffic offences and mere "scuttlebutt" of sexual misconduct could not be led; the wrong ruling caused a miscarriage. Discretion to exclude: weigh prejudice against the benefit the accused sought from raising character; exclude if disproportionate (Rihia). s 137 governs prosecution-adduced evidence. Use of any bad character: goes to credit only, not directly to guilt — the jury must not reason "bad character → more likely guilty" (Rihia).
Rebuttal DISALLOWED — the categories¶
| Category | What the Crown tried | Held | Case |
|---|---|---|---|
| Rumour and "scuttlebutt" | To rebut "no prior convictions of any kind" on child sexual offences, the prosecutor threatened to lead rumours of past, unspecified sexual misconduct. | Mere rumour or "tittle tattle" wholly unrelated to the issues will never pass the test of relevance. | Saw Wah v The Queen VSCA 7 |
| Irrelevant / minor priors | Subsequent traffic matters — drink-driving, careless driving, leaving the scene of an accident. | Traffic priors involve no high degree of moral obloquy and will rarely be relevant — on a sexual-offence trial they cannot sensibly affect the likelihood of guilt. The judge's failure to stop the idle threat caused the defence to abandon good character = substantial miscarriage of justice. | Saw Wah |
| Outside the "particular respect" | Priors for larceny, assault and driving, against a claim confined to no antecedent sexual offences (aggravated sexual assault of a stepdaughter). | By restricting the claim to sexual misconduct the accused was protected: rebuttal is disallowed if it delves into discreditable areas outside the perimeter erected by the defence. | R v Zurita NSWCCA 22 |
| Outside the defined parameter | Bad character falling outside good character led specifically as to conduct with young children. | The narrow definition prevented the Crown rebutting beyond it. | R v PKS (1998) |
| Where the door was never opened | Judge warned that running a collusion/motive-to-lie defence — and revealing the accused was on parole — would let in grossly prejudicial propensity-for-violence material. | Fundamental error. Adducing a complainant's motive to lie, or revealing parole as part of the factual matrix of that motive, is not adducing good character. Rebuttal strictly disallowed; the threat of a "mouthful" of prejudicial evidence misapplied the law. | Allen (a pseudonym) v The Queen [2016] VSCA 59 |
| Extreme bad character (s 137) | Evidence elicited that the accused was a "child molester" with a history of "putting the hard word on" women, on a sexual intercourse without consent trial. | Evidence of extreme bad character with no or little probative value — the judge is obliged to reject it under s 137. Bad character may be used only to negate good character the accused has adduced; the Crown may never assert a counter-proposition of a general likelihood of guilt. | Steve v The Queen (2008) 189 A Crim R 68 |
Is the door actually open?¶
| OPENS the door | Does NOT open the door |
|---|---|
| A deliberate, conscious decision to adduce good character — generally (s 110(2)) or in a particular respect (s 110(3)). | Emphatic denials of the charges (e.g. "I would never do that") — the emphatic manner of giving evidence is not a decision to raise character. |
| Evidence led to prove, directly or by implication, that the accused is of good character. | Advancing a robust defence hypothesis — including a complainant's motive to lie or collusion (Allen). |
| A claim framed so narrowly it creates a false impression given the nature of the charge — which widens the permissible rebuttal (Omot). | Revealing the accused was on parole where it forms part of the factual matrix of the alleged motive to lie (Allen). |
GATE 5 Leave to cross-examine on character (s 112)
Has the court actually turned its mind to the s 192 factors? s 192 EA governs the overarching discretion of a court to grant leave, permission, or a direction when empowered or required to do so by other provisions of EA. s 192(2) five statutory factors the Court needs to take into account when deciding whether to grant leave: - The extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing; - The extent to which to do so would be unfair to a party or to a witness; - The importance of the evidence in relation to which the leave, permission or direction is sought; - The nature of the proceeding; and - The power (if any) of the court to adjourn the hearing or to make another order or to give a direction in relation to the evidence. An accused must not be cross-examined on matters arising from character evidence unless the court gives leave (s 112). Granting leave without considering the s 192 factors — unfairness to a party, undue lengthening of the hearing, importance of the evidence — is an error of law (Stanoevski v The Queen (2001) 202 CLR 115; Hughes (a pseudonym) v The Queen). Weight and relevance of the rebuttal count too: equivocal, "feather-weight" material (e.g. an unproven investigator's report) creates a grave risk of unfairness and should not open a collateral inquiry (Stanoevski).
Leave under s 192 — the mandatory gateway¶
Not a guiding principle — a gateway: wherever the Act requires leave — notably s 112 (cross-examining an accused about character) and s 38 (cross-examining an unfavourable witness) — the court must take into account the five factors in s 192(2). Failure to expressly or implicitly turn the judge's mind to them is an error of law that can vitiate the trial and produce a substantial miscarriage of justice. s 192 works in tandem with s 137: probative value must always be weighed against the danger of unfair prejudice.
The five s 192(2) factors¶
| Factor | The question — and the defence argument |
|---|---|
| (a) Length of hearing | The extent to which granting leave would add unduly to, or shorten, the hearing. Argue: it will spawn a collateral inquiry and distract the jury. |
| (b) Unfairness | The extent to which it would be unfair to a party or a witness. Argue: highly prejudicial, low-weight material operates unfairly against the accused (with s 137). |
| © Importance of the evidence | The importance of the evidence for which leave is sought. Argue: it lacks substantial importance to the core facts in issue. |
| (d) Nature of the proceeding | The nature of the proceeding — the stakes and character of the trial. |
| (e) Other orders available | The court's power to make another order or give a direction in relation to the evidence — i.e. whether a lesser measure would do. |
s 192 in action — leave refused, vitiated, or validly granted¶
| Case | The application | Outcome | Why |
|---|---|---|---|
| Stanoevski v The Queen (2001) 202 CLR 115 | s 112 leave to cross-examine a solicitor accused (who had led good character) on a Law Society investigator's report suggesting she forged signatures in an unrelated Family Court matter. | VITIATED | The judge failed to advert to s 192(2) — the discretion miscarried. The report was equivocal and untested, of "feather weight" probative value and so lacking importance ©; it opened an "extensive collateral inquiry" consuming undue time (a); and raised a "very grave possibility of unfairness" (b), distracting the jury from the charges. |
| R v Le [2002] NSWCCA 186; (2002) 54 NSWLR 474 | s 38 leave for the Crown to cross-examine the appellant's girlfriend, whose evidence departed from her recorded police interview (heroin supply trial). | ERROR OF LAW | The judge considered neither ss 192, 135 nor 137. Without s 192 defining the parameters, the Crown engaged in "unfettered and wide-ranging questioning" — a prejudicial collateral attack on the witness's drug habits and sexual relationships. Leave could properly have been granted to test the prior inconsistent statement had s 192 been used to confine the scope. |
| Hughes (a pseudonym) v The Queen [2013] VSCA 338 | s 112 leave to cross-examine the accused on character. | Leave must be refused | s 192 must be used to stop bad character becoming an unfair tactical device: weigh the importance of the evidence © and the unfairness of granting leave (b). Refuse where probative value is low but prejudice high — e.g. ventilating irrelevant scuttlebutt or minor traffic priors in a sexual-offence trial. |
| Adam v The Queen (2001) 207 CLR 96 | s 38 leave for the prosecution to cross-examine its own witness (Sako) on prior inconsistent statements to police. | VALID | The judge expressly referred to the s 192(2) considerations in the jury's absence. No unfairness (b): the witness was expected to give evidence contradicting the Crown case in chief and to be highly cooperative with the defence in cross-examination. Rigorous s 192 application gave the jury the full factual picture without illegitimate prejudice. |
| DPP v Garrett (a pseudonym) [2016] VSCA 31 | s 192A advance ruling for s 38 leave to cross-examine a crucial eyewitness (KB) the Crown was obliged to call, knowing KB would say no assault occurred (police officer assault trial). | VALID (on appeal) | The judge wrongly refused leave by assessing the evidence as not 'unfavourable' — evidence completely undermining the Crown's identifiable case is unfavourable. The grant must be guided by s 192(2): cross-examining an eyewitness who directly contradicts the prosecution case is highly important © and, if the questioning is controlled, occasions no unfairness (b). |
Practice — both directions: Defence, resisting leave: insist the judge explicitly articulate findings on each s 192(2) factor; argue the cross-examination lacks importance to the core facts ©, will prolong the trial with collateral disputes (a), and is unfair by introducing high-prejudice, low-weight material (b) — coupled with s 137. Advancing your own case: a s 192A advance ruling is the most effective tool to learn exactly how the judge will apply s 192 before you commit to a strategy that might open the door to damaging cross-examination.
GATE 6 Is a good character direction given? (Jury Directions Act 2015, ss 14–16)
Sought — or compelling even without a request? Given if requested, or absent a request where there are substantial and compelling reasons (JDA ss 14–16), especially where character has an immediate and obvious connection with the issues (Melbourne v The Queen (1999) 198 CLR 1). Pending charges do not defeat it: a charge is no evidence of bad character, and a judge cannot rebut character of their own motion (DPP v Newman [2015] VSCA 25). Where good character is admitted and unrebutted, the accused is generally entitled to the direction.
The good character direction — how the jury uses it¶
| Use | What the jury may do with it (JCV Charge Book) |
|---|---|
| 1 · Credibility | A person of good character is generally more trustworthy → the jury may be less willing to accept the prosecution case, and more willing to accept the accused's denials. |
| 2 · Propensity (unlikelihood) | A person of good character is generally unlikely to offend → the jury may be less willing to accept that the accused committed the offence. |
Two standard caveats (JCV): (1) good character cannot alter proven facts — it only helps decide whether the facts have been proven; and (2) a person previously of good character can commit a crime for the first time.
Bad character (if it is in evidence): goes to credibility only — a person of bad character may be thought less trustworthy. The jury must not reason "bad character → more likely guilty"; that reasoning is prohibited (JCV; Rihia).
Counsel's duty & where trials go wrong¶
★ Featured — Browne v The King [2024] VSCA 194 (Gregory Francis Browne)
Priest, Taylor and Boyce JJA, 5 Sept 2024. Rape and associated offences; the accused had no priors and positive good character available. Through counsel's incompetence (revealed on affidavit), trial counsel neither led the good-character evidence nor sought a direction — and led evidence of bad character. The Crown conceded. Held: this deprived the applicant of "a chance of acquittal, fairly open" (Sharma v The Queen [2011] VSCA 356); convictions quashed, new trial.
• Not sought: Ho v The King [2025] VSCA 150 — manslaughter; the lack-of-violence direction was not ultimately sought, though it was material to the deliberateness of the fatal stab wound; failure = substantial miscarriage, retrial.
• Wrong ruling: Schmidt v The King [2024] VSCA 256 — TJ wrongly disallowed particular-respect character evidence (that the accused behaved respectfully to women when affected by alcohol); plainly wrong per s 110; miscarriage.
• No direction via compromise: Saw Wah (2014) 45 VR 440 — counsel's misunderstanding plus an over-reaching prosecutor produced a compromise under which no direction was given; miscarriage.
• Mirror risk: Allen (a pseudonym) v The Queen [2016] VSCA 59 — defence foolishly adducing bad character can equally overturn a conviction.
Don't undercut your own direction
telling the jury "even Jack the Ripper had no prior convictions at some stage" is undesirable — though on its own it may not be enough to overturn (Wahi v The Queen [2015] VSCA 132).
Cases at a glance¶
| Case | The point it stands for |
|---|---|
| Attwood v The Queen (1960) 102 CLR 353 | Meaning of "good character": evidence in disproof of guilt; unblemished reputation → unlikely to have offended. |
| Bishop [2013] VSCA 273 | Character is divisible; general opinion evidence is admissible; a particular-respect claim does not open unrelated bad character. |
| R v Rihia [2000] VSCA 235 | Character cannot be divided by time; a good-character claim opens the whole relevant past; bad character goes to credit only. |
| Hughes (a pseudonym) v The Queen [2013] VSCA 338 | Emphatic "I have never…" denials are not necessarily putting character in issue; s 192 must be considered on leave. |
| R v Omot [2016] VSCA 24 | A narrow good-character claim cannot create a false impression (no sexual priors opened violence priors on a violent rape). |
| Saw Wah v The Queen (2014) 45 VR 440 | Rebuttal must be relevant; irrelevant later traffic offences and "scuttlebutt" inadmissible; lost direction = miscarriage. |
| Schmidt v The King [2024] VSCA 256 | Wrongly disallowing particular-respect good character = miscarriage. The trial judge wrongly held that character evidence was confined to a person's general reputation for traits like honesty and consequently prevented defence counsel from adducing evidence from a witness that the applicant behaved respectfully towards women, including when affected by alcohol. The Court of Appeal confirmed that section 110 of the Act departs from the common law "all or nothing" approach by expressly permitting an accused to adduce evidence of good character "in a particular respect". Because the applicant did not give sworn evidence, the appellate court found that this character evidence was of paramount importance to his defence, and it should not have been excluded. |
| Stanoevski v The Queen (2001) 202 CLR 115 | Leave to cross-examine on character requires s 192 consideration; "feather-weight" collateral allegations should not open a wide inquiry. |
| DPP v Newman [2015] VSCA 25 | Pending charges are no evidence of bad character; a judge cannot rebut of their own motion; entitlement to direction where GCE is unrebutted. |
| Melbourne v The Queen (1999) 198 CLR 1 | Direction where character has an immediate and obvious connection to the issues. Unless A’s character has an immediate and obvious connection with an issue in the case, it is ordinarily better that the trial judge says nothing about how the jury may use such evidence, beyond simply restating counsel's arguments. Where such an immediate and obvious connection does exist, or where the trial judge otherwise exercises their discretion to direct the jury on good character, the directions will typically address two distinct legal limbs: propensity (the likelihood of the accused committing the offence) and credibility (the reliability of the accused's statements |
| Browne v The King [2024] VSCA 194 | Failing to lead available good character / seek the direction = substantial miscarriage; retrial. |
| Ho v The King [2025] VSCA 150 | Failing to seek the good character direction (manslaughter) = retrial. Trial judge failed to give the jury a good character direction. Although the applicant was involved in cultivating cannabis, he had no prior convictions for violence, which was highly relevant because while he admitted to the physical act of stabbing the deceased during a scuffle, his intention in doing so was the central fact in issue. The CoA held that the omission of the character direction occasioned a substantial miscarriage of justice because the prosecution's evidence as to his intent was not overwhelming, but rather relied heavily on circumstantial inferences and the jury's rejection of the applicant's partially incomplete record of interview |
| Allen (a pseudonym) v The Queen [2016] VSCA 59 | Defence foolishly adducing bad character can overturn a conviction. Terrible XXN by defence opened the door to highly prejudicial bad character evidence demonstrating the applicant's propensity for extreme domestic violence. By improperly pursuing an unfounded allegation of collusion, counsel elicited that the applicant had been gaoled for kidnapping and breaking the mother's ribs, frequently breached his parole by drinking, and routinely beat the mother and children. This catastrophic forensic error further permitted the prosecution to adduce in re-examination that the applicant had threatened his son at knifepoint, faced charges for puncturing a lung during a break-in, and physically assaulted the child complainant by slamming her into a door. |
| Wahi v The Queen [2015] VSCA 132 | "Even Jack the Ripper…" comment undesirable, but not necessarily fatal to the direction. |
Co-accused (s 111)¶
Expert opinion only: an accused may adduce expert opinion evidence about a co-accused's character (specialised knowledge based on training, study or experience; the hearsay & tendency rules are disapplied and disapplied again for evidence rebutting it). Subject to the s 135 general discretion (court has discretion to refuse to admit otherwise relevant and admissible evidence) — not s 137, which applies only to evidence adduced by the prosecution.
Recent authority watch (2024–25)¶
• 5 Sep 2024: Browne v The King [2024] VSCA 194 — failing to lead available good character / seek the direction (and leading bad character) = substantial miscarriage; retrial. The lead case on counsel's duty.
• 2024: Schmidt v The King [2024] VSCA 256 — wrong ruling disallowing particular-respect character evidence = miscarriage.
• 2025: Ho v The King [2025] VSCA 150 — failing to seek the good-character direction (manslaughter) = retrial.
Good character on a plea — sentencing (a different regime)¶
Trial vs plea: the rules above (ss 109–112) govern good character as evidence at trial. On a plea it is a sentencing question under the Sentencing Act 1991 (Vic) — a different regime, with its own limits.
The general rule (s 5(2)(f)): the court must have regard to the offender's previous character; good character and a lack of prior convictions are recognised mitigating factors (stronger rehabilitation prospects, lower risk of reoffending).
Weight is not fixed (Ryan): good character may be taken into account, but its weight depends on the circumstances, including the nature of the offending, and is reduced where the offender's good character or standing facilitated the offending — classically, using a position of trust to gain access to victims (Ryan v The Queen (2001) 206 CLR 267). The same logic cuts down good character in breach-of-trust / white-collar offending, where reputation is often the very thing that enabled the crime.
Child sexual offences — s 5AA (the hard bar): despite s 5(2)
, in sentencing for a child sexual offence the court must not have regard to the offender's previous good character or lack of prior findings of guilt/convictions if satisfied these were of assistance to the offender in committing the offence (s 5AA(1), Sentencing Act 1991 (Vic)). Inserted by the Justice Legislation Amendment (Victims) Act 2018, implementing the Royal Commission's recommendation to displace Ryan for these offences; it applies to current and historical offending.
Scope & limits of s 5AA: a "child sexual offence" is a sexual offence within s 3 Criminal Procedure Act 2009 (other than an intimate image offence) against a person under 18. The bar is conditional — it bites only where the court is satisfied the good character assisted the offending (e.g. grooming behind a trusted reputation); if it did not assist, character may still be weighed (subject to Ryan). It does not apply to an offender who was under 18 at the time (s 5AA(2)).
Good character on a plea — at a glance¶
| Situation | Weight of good character |
|---|---|
| Ordinary offending | Relevant mitigating factor (s 5(2)(f)) — rehabilitation / lower reoffending risk. |
| Good character facilitated the offending | Reduced weight (Ryan) — position of trust, access to victims; breach-of-trust / white-collar. |
| Child sexual offence, character assisted commission | Must be disregarded (s 5AA) — unless the offender was under 18 (s 5AA(2)). |
Currency
child sexual offence sentencing is subject to continuing reform in Victoria — confirm s 5AA and any related provisions are current before relying.