Three recent Supreme Court cases have considered whether adverse publicity about an offender in the course of criminal proceedings amounts to additional punishment which should reduce their sentence.
In R v Curtis [No 3]  NSWSC 866, Oliver Curtis, a financial trader, was found guilty by a jury of conspiracy to commit insider procuring.
The Supreme Court sentenced Curtis to two years imprisonment with a one-year non-parole period. The Court accepted that deterring others from committing similar offences was a primary consideration and that there was a need to impose adequate punishment in the case of white collar crime.
However, Curtis argued that the Court should reduce his sentence because he had suffered damage to his professional reputation and professional relationships because of the case's intense media scrutiny. The Court concluded that although the degree of adverse media reporting had not reached the level of some cases, Curtis had probably suffered to some degree, and gave "some small weight" to that consideration.
In R v Wran  NSWSC 1015, Harriet Wran, the daughter of former NSW premier Neville Wran, pleaded guilty to robbery in company and to being an accessory after the fact to murder. Wran had originally been charged with murder, but the DPP withdrew those charges. The Court sentenced her to four years imprisonment with a non-parole period of two years on the basis of an "extremely powerful" subjective case, genuine remorse and good prospects of rehabilitation. Wran also received a 20% discount because she pleaded guilty before trial.
In considering the question of adverse publicity, the Court said the significant public attention the case attracted was "to a considerable extent the result of a misunderstanding, fuelled to a degree by ill-informed reporting in some sections of the media, about Ms Wran's participation in the relevant events and the basis of her pleas of guilty to the charges for which she is now to be sentenced".
Describing some of the coverage of the case as "a sustained and unpleasant campaign by some of the daily newspapers circulating in Sydney", the Court concluded that the adverse publicity warranted a reduction in sentence to take account of the damage to Wran's reputation; exposing her to the risk of custodial retribution; and impeding her recovery from drug addiction and mental health problems.
R v Obeid (No 12)  NSWSC 1815, Eddie Obeid, a former minister in the NSW Government, was found guilty of wilful misconduct in public office. The Court sentence Obeid to five years imprisonment with a non-parole period of three years.
At his sentence hearing, Obeid argued he had suffered a form of extra curial punishment from extensive media coverage which had humiliated him and affected members of his family.
The Supreme Court compared the case with Wran's case and concluded that because Obeid was a public figure and the offending involved the abuse of a public position, the media coverage did not constitute extra-curial punishment. Unlike in Wran's case, the media reports did not sensationalise facts that were irrelevant or trivial to the offending conduct. Rather, the reportage was concerned with an issue of public importance, namely political corruption.
The Court accepted there were cases where public humiliation could mitigate sentence. It noted however that such publicity will only be considered where "it reaches such proportion as to have a physical or psychological effect on the offender".
There was no evidence the adverse publicity had had any direct physical or psychological effect on Obeid. There was, however, some evidence that the adverse publicity had affected his family. The Court, therefore, considered "only in the relatively limited sense" the effect his family's suffering had had on Obeid.
The Court of Criminal Appeal has heard an appeal against conviction and sentence in the Obeid case and is considering its decision.