Should Media Coverage Have an Effect on Sentencing?

Media Release

Embargoed until 00:01 a.m. (AEST) Tuesday 19 July 2022

The Sentencing Advisory Council’s latest report reviews 20 years of case law in Australia and highlights inconsistencies in how media coverage affects sentencing outcomes.

When sentencing a person for committing a crime, Australian courts sometimes consider whether the person has already been punished outside the criminal justice system. Often referred to as ‘extra-curial punishment’, it can, for example, include job loss, family hardship, physical injury and visa cancellation. If this has occurred, the offender may receive a reduced sentence.

One form of extra-curial punishment that has received relatively little attention is media coverage about a person’s case, especially high-profile media coverage. The question is: Should media coverage about a case entitle the offender to a reduced sentence? And if so, why and how much?

These were questions considered but not answered in 2001, when the High Court was divided as to whether media coverage should be able to reduce a person’s sentence. More than two decades later, the issue remains unresolved.

It is in that context that the Council sought to better understand how courts have been navigating this complex area. We found that when Australian courts are asked to take media coverage into account in sentencing, they face uncertainty as to the basis for doing so and how much weight to give it. The report does not try to resolve these uncertainties. Instead, it reviews judicial and other commentary with the aim of encouraging further discussion by judicial officers, lawyers, journalists and the general public.

Quotes Attributable to Council Chair Emeritus Professor Arie Freiberg AM

‘This is an important report for both the legal profession and the wider community, because being the subject of extensive media coverage can be a gruelling 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. It also seems unfair to allow the choices of journalists, about which cases they cover, to affect sentencing outcomes.’

‘We hope this report is the start of a conversation to try and resolve the current uncertainty.’

The report, Should Media Coverage Affect Sentencing? will be available on the Council’s website on the morning of Tuesday 19 July 2022.