What is extra-curial punishment?
Extra-curial punishment is any form of loss or disadvantage that occurs to an offender that is not imposed by the court on sentence. It is “punishment that is inflicted upon an offender otherwise than by a court of law”: R v Wilhelm [2010] NSWSC 378 per Howie J at [21]
Extra curial punishment acknowledges that we do not live in a vacuum where someone can be accused of a crime, go through the criminal justice system and come out without any outside repercussions. Instead, the court recognizes that additional forms of harm or disadvantage can eventuate through means such as harassment, threats, physical abuse, public humiliation, etc. These are seen as extra punishments in addition to any imposed by the court.
While some forms of extra-curial punishment are generally accepted by the court, other areas are still in limbo with courts differing in their opinions. Two such areas are professional implications and public reputation.
Professional implications
Professional implications could include things such as losing your job, being demoted or being ineligible for holding certain positions. The law is unsettled on whether or not the court can take into account professional ramifications of offending as extra-curial punishment.
In Kearsley v R [2017],[1] the court held that extra-curial punishment cannot arise when the loss of employment is a natural consequence of a conviction. When someone commits certain types of offences, it can be assumed this will impact their career and in some cases loss of employment can be viewed as an “inevitable consequence”: Greenwood v R [2014] NSWCCA 64 at [35]. In the recent case of Fenner v The Queen it was held at that the fact that the applicant would never work again as a teacher or diving instructor could not be regarded as extra-curial punishment in the circumstances of the offending.[2]
However, other cases differ on that opinion. In R v Zerafa (2013) 235 A Crim R 265, the court accepted the professional ramifications of the offending were a mitigating factor, but found them to be of limited effect because the respondent “must have … anticipated … that an inevitable consequence, if his offending [defrauding the Commonwealth] were discovered … would be that he would be struck off the role of chartered accountants”.[3]
Rather than a blanket rule, it appears that whether and to what degree professional implications can be viewed as extra-curial depends on whether there is a link between the offending and the occupation. For example FB v R [2011] NSWCCA 217, a high school teacher was convicted of aggravated sexual assault of a student and the court stated that the “respondent must have known that his sexual pursuit of pupils in his care would sooner or later bring his professional career to an end”.[4] If the criminal conduct is more removed from the occupation, there may be more scope to argue that loss of jobs or impact to employment should be considered extra-curial punishment.
Public reputation and media
The High Court is currently divided on whether “public humiliation” is a mitigating factor on sentence. In the case of Ryan v The Queen (2001) 206 CLR 267. Kirby and Callinan JJ were each of the view that adverse publicity endured by a “paedophile priest” could properly be taken into account, while Hayne J disagreed and McHugh J. McHugh J considered it counterintuitive that the worse the crime, the greater the public condemnation, would then equate with a great reduction.[5]
It is accepted in NSW that where public condemnation reaches such a proportion that it has a physical or psychological effect on the person, it may properly be considered by the sentencing court.[6] For example, in the well-known matter of DPP v Pusey [2021] VCC 478 in Victoria, the judge stated Pusey’s conduct had attracted an “enormous amount of public antipathy” and the consequences of this could be considered as a form of extra-curial punishment.[7] In this matter, Mr Pusey was pulled over by police for speeding in Victoria. A truck hit the police officers, killing them. Rather than assisting, Pusey filmed the scene including their deaths, with commentary. He was convicted of multiple offences including an act that “outrages public decency”.
This case received substantial media attention. He was described ‘The Devil driving a Porsche’ and a ‘Vile fiend’ in news articles.[8] He received death threats, his home was vandalised and at times he had to be placed under suicide watch due to the strain on his mental health. In this case the judge deemed it appropriate to take into account the public condemnation as a form of extra-curial punishment.
In areas where the law is divided, decisions can rest on the specific details and circumstances of a case. If you believe you have suffered extra-curial punishment, that may be relevant on sentence.
Further advice:
This blog is intended to provide general information about matters that often come before the court and is not legal advice. For legal advice on sentencing, please reach out to us and speak to one of our lawyers on (02) 9696 1361 (Sydney) or (02) 5104 9640 (Canberra) or by email at [email protected]
Rebecca Kriesler, Lawyer
[1] NSWCCA 28 at [76]
[2] [2022] NSWCCA 48 at [60]
[3] at [92].
[4] at [156].
[5] at [55].
[6]: R v Allpass (1993) 72 A Crim R 561; Kenny v R [2010] NSWCCA 6; Duncan v R [2012] NSWCCA 78 at [28]; BJS v R (2013) 231 A Crim R 537 at [228]–[231].
[7] at [78].
[8] DPP v Pusey at [54].
