On July 19, 2022, the Sentencing Advisory Council for Victoria, released its report, Should Media Coverage Affect Sentencing? The report notes that in imposing sentence, “[o]ne of the factors that courts may take into account is whether the offender has already been punished in some fashion outside the criminal justice process. Known as extra-curial punishment (or extra-judicial or natural punishment) this can take various forms such as visa cancellation, loss of chosen career, injury to the offender and hardship to the offender’s family”. In this report the Sentencing Council considers “one form of extra-curial punishment: adverse media coverage, in particular, of people” (at pages 2 and 3).
The Report indicates that “there has been relatively little analysis of the appropriate role that such publicity and vilification should have in the sentencing process” (at page 6). After reviewing 43 Australian cases in which the issue of adverse media coverage as a factor in sentencing arose, the Council concluded that “those 43 cases suggest that adverse media coverage generally has some relevance to the sentencing exercise, but that the coverage or its consequences must somehow go above and beyond what would naturally be expected due to either the nature of the crime or the profile of the offender” (at page 16).
The Report concludes as follows (at pages 39 and 40):
This report aimed to review the literature and case law on the role of public opprobrium stemming from adverse media coverage as a factor that courts may take into consideration in sentencing. Its key findings include that:
• while courts, practitioners and advisory bodies all tend to acknowledge that the issue of media coverage as a mitigating factor is unsettled, the vast majority nevertheless show a tendency towards allowing media coverage to have some (even limited) role in the synthesis process in appropriate cases;
• most courts, however, also seem to suggest that adverse media coverage may not be relevant to sentencing if the coverage was a natural and probable consequence of the offending, an assessment informed by the nature of the crime and the profile of the offender;
• 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; and
• in assessing the weight to be given to adverse media coverage and its consequences, there are a number of factors (above) that may be helpful for courts while the issue remains unresolved.
With the exception of discounting adverse media coverage as an aggravating factor, no view is offered on the appropriateness or otherwise of the current state of the law. It does, however, seem that there is considerable inconsistency in whether adverse media coverage is taken into account at all, the basis on which it is taken into account and how much weight is given to it in sentencing. 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.