By Paul McGorrery
In sentencing an offender, courts take many factors into account, such as the seriousness of the offence, the offender’s prior record, their age, whether they pleaded guilty and many others. In Australia, courts do this through an approach known as instinctive synthesis, meaning they consider all the factors that can justify a sentence being more or less severe and then arrive at a final outcome. One 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 punishment3 (or extra judicial or natural5 punishment) this can take various forms such as visa cancellation,6 loss of chosen career, injury to the offender8 and hardship to the offender’s family. This report is concerned with just one form of extra-curial punishment: adverse media coverage, in particular, of people. The media and the courts have an important and symbiotic relationship, but sometimes their interests can diverge. The media have an interest in reporting on criminal justice matters because they are often stories of considerable interest to their audiences. In reporting on those stories, the media often concentrate their attentions ‘on the exceptional and unusual among serious crimes’, which can lead to ‘intense and often emotive media reporting’ about sentencing. This can run the risk of undermining, rather than promoting, confidence in the justice system.
Courts in turn have an interest in having their decisions reported. Confidence in the judicial arm of the criminal justice system relies on a combination of community awareness about what courts do, the transparency of their work, and the apparent fairness of their decisions, which can only be scrutinised if there is transparency and community awareness. Moreover, the sentencing purpose of general deterrence – whereby the sentencing of one offender is thought to deter other people from engaging in similar behaviour – is realistically only achievable (if at all) if the media and/or government operate as the conduit between the courts and the community. While some courts have taken the very laudable step of making most of their sentencing remarks publicly available, many people do not even have time to read media summaries, let alone original source material like sentencing remarks, especially in the social media age. So the community realistically only becomes aware of sentencing decisions through the media. The difficulty is balancing the need for fair coverage (the courts’ priority) with the need for interesting coverage (the media’s priority). Justice Harper has described the relationship as like a ‘Greek tragedy’ because ‘[e]ach is forced by its circumstances to face the other off, with neither having the flexibility necessary to reach a satisfactory working compromise’.
Malbourne: Sentencing Advisory Council (VIC), 2022. 24p.
