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Adverse media coverage’s impact on sentencing is inconsistent and courts need clearer guidance, an independent statutory body warns.
In a wide-ranging report, Victoria’s Sentencing Advisory Council reviewed 20 years of Australian case law and literature on media-related “extra-curial” punishment.
The term involves any punishment outside the criminal justice system, such as job loss, family hardship, physical injury, and visa cancellation, and can often justify a reduced sentence.
The review found that most courts consider adverse media coverage as a form of extra-curial punishment, but there remains “significant inconsistency” in its application.
It said that most courts, legal practitioners, and advisory bodies acknowledge its use as a mitigating sentencing factor is unsettled.
Nevertheless, they display a “tendency” towards allowing it to have some role, albeit limited, in calculating an offender’s final sentence in some instances.
The report said, “There are a number of bases on which adverse media coverage could be considered mitigating, including the experience of stigmatisation, community backlash, sensational or inaccurate reporting and/or psychological sequelae.”
But most courts also appear to suggest negative coverage from the Fourth Estate may not be relevant if it stems from the seriousness of the crime or the alleged offender’s profile, in what it termed a “celebrity effect.”
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It said, “Some offenders’ crimes attract media attention due entirely to the nature of the crimes themselves, such as those committed by Adrian Bayley and James Gargasoulas.”
“Other people, though, attract media attention (or heightened attention) because they already have some public profile or reputation, such as footballer Jarryd Hayne, cardinal George Pell, former Supreme Court Justice Marcus Einfeld, or former parliamentarian Eddie Obeid.”
Except for discounting negative media coverage as a factor to meter out a heavier sentence, the review did not offer a view on whether current sentencing laws are appropriate.
But it noted a considerable inconsistency in whether negative media coverage is taken into account and, when it is, how much weight it is given.
“Whether through legislation or, more likely, appellate guidance, Australian courts would benefit from clearer guidance about whether, when, and how adverse media coverage and public opprobrium should affect sentencing,” it said.
Council chair Arie Freiberg hopes the report will spark a discussion on ways to resolve the uncertainty.
Freiberg said, “Being the subject of extensive media coverage can be a grueling experience, particularly in the modern age of social media.”
“It is hard not to see that as a form of punishment. On the other hand, people who commit crimes should expect some media coverage.”
With AAP. (Content has been tweaked a bit for style and length.)
Jaw de Guzman is the content producer for Comms Room, a knowledge platform and website aimed at assisting the communications industry and its professionals.
