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Media impact on sentencing ‘inconsistent’

Negative media coverage’s impact on sentencing outcomes is inconsistent and Australian courts need clearer guidance, an independent statutory body warns.

In a wide-ranging report released on Tuesday, 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 most courts appear to take adverse media coverage into account as a form of extra-curial punishment, but there remains “significant inconsistency” in its application.

Most courts, legal practitioners and advisory bodies acknowledge its use as a mitigating sentencing factor is unsettled, it said.

Nevertheless, they display a “tendency” towards allowing it to have some role, albeit limited, in calculating an offender’s final sentence in certain cases.

“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,” the report said.

But most courts also appear to suggest adverse 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”.

“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,” it said.

“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.”

With the exception of discounting adverse media coverage as a factor to meter out a stronger sentence, the review did not offer a view on whether current sentencing laws are appropriate.

But it noted a considerable inconsistency in whether adverse media coverage is taken into account at all 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.

“Being the subject of extensive media coverage can be a gruelling experience, particularly in the modern age of social media,” Professor Freiberg said.

“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.”

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