Harriet Wran’s sentence for being an accessory after the fact to murder was reduced because she had been subjected to “immense psychological distress” by a possible Daily Telegraph “vendetta” against her. Is media coverage now on trial?

As Crikey reported yesterday, the Tele’s coverage of Wran’s case has been lurid, highly personal and invasive. It was a topic much covered in the judgment, which detailed how hurtful and damaging much of the coverage had been. “In my opinion the publication of these egregious articles warrants the imposition of a sentence that takes account of … the unavoidable spectre of enduring damage to her reputation,” Supreme Court Justice Ian Harrison’s judgment stated.

That caught media lawyers and journalists off guard. Minter Ellison media lawyer Peter Bartlett told Crikey he’d “never heard” of a judge making such a statement. Michael Bradley, the principal of Marque Lawyers, says although judges often take such things into account, he’s never seen it uttered so explicitly. “What is [unusual] is the way the judge went to town on the media … being so explicit about its culpability and how significant an impact that had had on his decision,” Bradley said.

Media outlets are careful not to influence juries and risk a contempt-of-court charge, meaning lurid coverage usually only starts once a verdict is rendered but before sentencing. But much of the legal system rests on the assumption that judges cannot be influenced by media coverage (Wran’s case was a judge-only trial).

Bartlett is concerned about a “bad precedent” if media publicity is taken into account in sentencing in this way. “Where does it stop? In an age of social media, there are a whole range of often fairly outrageous comments made. Is a judge to take those into account in giving a lesser sentence because the convicted individual was upset?

“Say if Eddie Obeid is convicted, should be get a lesser sentence because there’s a lot of media which is critical of him?”

Bradley says sentencing is always highly contextual, and celebrity such as Wran’s “cuts both ways”.

“It’s always been a really controversial question,” he said. “High-profile people often argue on sentencing that the mere fact of their celebrity should mitigate their punishment because they’ve already lost reputation and been savaged in the media. From one point of view, that’s a valid argument. But you can equally argue, so what? Why should someone with a profile be treated any differently?

“The reality is sentencing practice is a contextual thing. Because of the principles of sentencing, which include specific and general deterrence and rehabilitation, the sentencing judge is required to take into account circumstances of the individual, which include things that aren’t directly related to the crime itself. It’s impossible to divorce the assessment from the individual — who they are, where they’ve come from.”

Judges are becoming more willing to comment on media coverage in sentencing. The Wran judgment put Bradley in mind of the recent Oliver Curtis insider trading judgment (also in the NSW Supreme Court), in which Curtis’ defence, like Wran’s, suggested that Curtis had been punished through damage to his reputation through media coverage. Justice Lucy McCallum’s judgment made passing reference to how “after centuries of relative civility, technological advances have facilitated an explosion of dissemination of medieval attitudes”.

“There is no evidence that Mr Curtis himself has invited media attention; he is not to be equated with his wife in this context,” the judgment stated, a reference to Curtis’ publicist partner Roxy Jacenko, who posted her outfits to Instagram every day of the trial. “On balance, although the degree of adverse media reporting has not reached the level of some cases, I accept that Mr Curtis is likely to have suffered to some degree on that account and have given some small weight to that consideration.”

“Both examples indicate judges are becoming more vocal,” Bradley said. “Historically they tend to pretend to ignore the media … except when it gets in their face. They’re obviously becoming more savvy about it.”

The Supreme Court’s Ian Harrison, who judged the Wran case, is today the subject of critical coverage in The Daily Telegraph, which has dragged up a 2008 speech he gave in which he said many jail terms were too long.