Opinion

Sarah Krasnostein
Character assessment in sentencing decisions

Some time between 8.58am and 10.43am on June 29, 2016, after Borce and Karen Ristevski’s daughter, Sarah, left for work, Borce killed Karen, his wife of 27 years, in a manner known only to himself. He then moved her body from their home, placed it in the boot of her car, drove to Mount Macedon Regional Park, north-west of Melbourne, and concealed it before proceeding to lie about his actions to their family, the police and the public for years. By the time investigators found Karen’s body in the isolated bushland where it had been hidden by Ristevski, it was no longer possible to determine a cause of death.

Eventually, Borce Ristevski pleaded guilty to manslaughter, but offered no information about his means or motive. On April 18, 2019, still showing no remorse, he was sentenced to nine years in jail and ordered to serve a non-parole period of six years.

Five character references were tendered on his behalf. Their contents, attesting to his good character, were not challenged by the prosecution. Their authors were Sarah, her friend, his niece who was also his god-daughter, her husband and another god-daughter. Sarah’s reference stated: “I can confidently say that in my 23 years I have never witnessed any form of violence between my mum and dad.”

Addressing Ristevski, the court found that: “Collectively, the references show you to have been a person of good character, well-liked and involved in your local community, including as a player and coach in football and cricket. The fact that you are 55 years of age and have no criminal antecedents … reinforces what your character referees have said about you … I accept that, apart from the commission of your crime and your post offence conduct, you have been a person of good character.”

 

After concluding Mass one Sunday in 1996, George Pell, then archbishop of Melbourne, sexually penetrated one child and sexually abused another – choirboys on singing scholarships – in the sacristy of St Patrick’s Cathedral. More than a month later, again following Mass, Pell pushed himself against one of those children, squeezing the boy’s genitals.

Pell was convicted of five charges of sexual offending against these victims, and in March 2019 he was sentenced to six years in jail and ordered to serve a non-parole period of three years and eight months.

In considering Pell’s “life’s contribution and … good character”, the court received a number of character references, including one from former prime minister John Howard. Unchallenged by the prosecution, they described “[a] man who dedicated his life to service, in particular to vulnerable members of the community”, “a compassionate and generous person, especially to those experiencing difficulties in their lives; someone who has a deep commitment to social justice issues and the advancement of education for young people”.

Alongside Pell’s lack of other offending, the court was satisfied that he was “someone who [had] been, in the last 22 years since the offending, of otherwise good character”.

 

Pell and Ristevski were sentenced in Victoria, where judges consider not only the crime but also the whole person before them, and for very good reasons. Unlike jurisdictions requiring automatic prison terms for crimes regardless of circumstances, the law in Australia generally, and Victoria specifically, safeguards judicial discretion to tailor sentences to individual offenders, thereby deploying correctional resources where they can be most effective.

Consideration of an offender’s good character – a type of “moral bank balance”, in the words of Professor Arie Freiberg, comprising factors such as public reputation, community contributions and lack of other offending – informs this calculus.

First-timers may be more morally deserving of some mitigation but also, in practical terms, more amenable to rehabilitation than those with proven histories of violence. While “previous good character” may be outweighed by other factors, the orthodoxy in our courts is that it shouldn’t be ignored.

There also remains a vital role to be played by sentencing guidance – whether issued by appeal courts, specialised sentencing councils or appropriately drafted legislative provisions – about how judges should respond to particular issues of law and policy to ensure our system keeps up with changing social values to produce outcomes that maintain the public’s faith in the administration of criminal justice. The problem of how to treat an offender’s “otherwise good character” when his offending was facilitated by a divide between his public and private selves is one such issue. I use the male pronoun because the problem is an inherently gendered one.

According to Our Watch, one woman a week in Australia, on average, is murdered by her current or former partner. Most intimate partner homicides occur within the privacy of the home. As with child sexual offenders who target known, non-familial children – the most common reported form of this offending – domestic violence offenders often depend on a disjunction between their character at home and their character on the street. These highly prevalent types of offending rely on access, which itself is facilitated by duplicity, socialised silence and power imbalances.

These factors also contribute to delays in detecting and problems in prosecuting these crimes; difficulties that enable offenders to claim good character at the cost of continuing trauma for victims. In these circumstances, the law around credit for “previous good character” starts to look like the difference between dispassion and disproportion.

This is not the first time received norms require evaluation to redress a gendered gap between what is legal and what is just. It is reminiscent of the situation before the defence of provocation was repealed in Victoria because it was operating to legitimise male violence against partners and allow offenders to claim that their homicidal behaviour was “out of character”.

Restating the long-held common law position, Victoria’s sentencing legislation requires judges to consider an offender’s “previous character”. By untethering this consideration from the crime itself, our law affords offenders some measure of mitigation where their crime is atypical – how much depends on the pull of other considerations, such as the harm caused, the offender’s culpability for it and public safety. An exception was introduced in 2018 by the Victorian attorney-general in response to a recommendation by the Royal Commission into Institutional Responses to Child Sexual Abuse.

That provision, section 5AA(1) of the Victorian Sentencing Act 1991, prohibits courts sentencing an offender for a child sexual offence from having regard to previous good character, or a lack of prior convictions, if it assisted the offender in committing the offence. Given how grooming works, this provision recognises that as a matter of accuracy, character cannot always be assessed separately from the context of the offending; a momentary lapse in decision-making while driving, say, is not necessarily the same as a momentary choice to use one’s unsupervised time to sexually assault a child.

Pell’s access to his victims was facilitated by the trust parents placed in the institution whose robes he was literally cloaked in, as the court recognised. So, his sentencing appeared to be the ne plus ultra of cases for implementing this new provision intended to reflect the realities of clerical abuse. Indeed, the court noted: “[you] abused your position to facilitate this offending”. Yet, the prosecution “explicitly disavowed” reliance on the provision, choosing not to take issue with the character portrait drawn by the defence, a stance that the court appeared to accept. Despite its recognition of Pell’s grave breach of trust, the court stated that “substantial allowance” had been made for his “good character and otherwise blameless life”.

How bad does first-time offending have to be to negate allowance for an offender’s “previous good character”? It’s not a new question, the High Court has previously been divided on the answer, and if the treatment of Pell’s “otherwise good character” was jarring to you, perhaps it’s because our system still grapples with the issue. The answer to the question of whether Pell acted “out of character” – what exactly that means and how much it matters – depends on which voices we listen to and how much we value what they tell us.

So too with Ristevski. The weight of claims that he was well regarded in his family and community, and that the domestic violence that killed his wife was an isolated event, needs to be evaluated alongside what was proven about his ability to deceive that family and that community. As with the second trial against Pell involving other allegations, which was dropped due to evidentiary issues, offenders should not be punished for uncharged acts or on the basis of speculation as to patterns of behaviour. But equally they should not receive the benefit of claims that are deeply partial when proportionate punishment and public safety are at stake. The factual integrity of the narrative underlying “good character” matters to victims in active cases, to silent victims deciding whether to report, and to the integrity of our criminal justice system.

Pell’s appeal will be heard next week. The director of public prosecutions has filed an appeal against Ristevski’s sentence on the grounds that it was manifestly inadequate.

This article was first published in the print edition of The Saturday Paper on Jun 1, 2019 as "Good characters". Subscribe here.

Sarah Krasnostein
is a writer, lawyer and researcher with a doctorate in criminal law.