Published by Geoff Harrison | 10 September 2024
Generally, extra-curial punishment refers to some form of punishment that an offender has or will suffer that has not been judicially imposed. If an offender has suffered extra-curial punishment, it is a factor that the court may take into consideration in mitigating an offender's sentence. As discussed in the decision of Einfeld at [86] by Basten JA:
86 The phrase “extra-curial punishment” appears to have two limbs, neither of which can be described with precision. That the punishment is “extra-curial” means that it is imposed otherwise than by the sentencing court. It would appear not, for example, to include consideration of the conditions of imprisonment and the impact of imprisonment on the particular offender. It is less clear whether it includes legal consequences of a kind which flow directly from the conviction or the sentence, such as disqualification from holding an office, remaining in an occupation or holding a licence. The concept of “punishment” has been treated with less rigour, suggesting that the phrase has been used on occasion in a manner which extends beyond its proper reach.
87 A thorough review of the earlier cases discussing extra-curial punishment was undertaken by James J, sitting in this Court, in R v Daetz [2003] NSWCCA 216; 139 A Crim R 398 (Tobias JA and Hulme J agreeing). As his Honour recognised, a paradigm case of what might be described as extra-curial punishment may be found in the infliction of traditional or customary punishments by members of Aboriginal communities, including being speared in the leg: see Daetz at [46], referring to Jadurin v R [1982] FCA 215; 44 ALR 424; 7 A Crim R 182 (St John, Toohey and Fisher JJ) and R v Minor (1992) 79 NTR 1; 105 FLR 180; 59 A Crim R 227 (NT CCA, Asche CJ, Martin and Mildren JJ); see also Mamarika v R [1982] FCA 94; 63 FLR 202; 42 ALR 94; 5 A Crim R 354 (Northrop, Toohey and Sheppard JJ),. In cases not involving traditional law, such as Daetz itself, the punishment is suffered by the offender at the hands of the community, either by way of immediate response to the commission of the offence or by way of subsequent retribution: see also R v Allpass (1993) 72 A Crim R 561 (NSWCCA, Gleeson CJ, Hunt CJ at CL and McInerney J).
88 The phrase has, however, been used in an expanded sense as appears from the judgment of Whealy J in R v Rivkin [2003] NSWSC 447; 198 ALR 400; 45 ACSR 366 at [54], albeit expressed in cautious terms as to the use of the phrase.
“I turn then to consider a number of circumstances which have been discussed in the submissions under the heading of extra-curial punishments. First, there is the undoubted disgrace and humiliation which must accompany the jury’s verdict .... Secondly, there is the impact on his wife and family .... Thirdly, there is the loss of his previous good standing in the community and in his profession as a stockbroker. ... Fourthly, there is the unquantifiable but real economic impact the conviction may have upon his livelihood and business calling. Fifthly, there is the disqualification from managing a corporation which flows from the provisions of s 206B(1)(b)(i) of the Corporations Act 2001. Finally, there is the possibility that ASIC may take action in relation to the Security Dealer’s Licence held by Mr Rivkin. Such action has the potential to result in the revocation of the offender’s securities licence or the imposition of a banning order. While it is true that any action in relation to the Security Dealer’s Licence might properly be regarded as protective in character, it is clear that an adverse outcome in any such proceedings would be a matter of real practical punishment so far as the offender is concerned. In my view, such matters may properly be taken into account in the sentencing process, notwithstanding that they derive from proceedings essentially protective in nature rather than penal.”
89 These statements were not the subject of adverse comment on appeal: see Regina v Rivkin [2004] NSWCCA 7; 59 NSWLR 284 at [411]- [412] (Mason P, Wood CJ at CL and Sully J). Nevertheless, the label “extra-curial punishment” seems inapposite in relation to all of these considerations, except the last. Nor is it desirable to address them all under the same heading. Some consideration must be given to the consequences of how particular matters are taken into account. Thus, loss of good standing in the community may readily give rise to an element of double counting, if the offender is also given favourable consideration for his or her prior good character. Taking account of the economic consequences (including loss of employment) which inevitably follow from imprisonment, may mean that those previously in employment will receive shorter sentences than those who were unemployed.
90 This Court has recently considered whether and to what extent public humiliation may properly count as a mitigating factor: see Kenny v R [2010] NSWCCA 6 at [49] (Howie J). In that case Howie J expressed no doubt that mitigation was appropriate where there had been “some physical or psychological effect on the person so that it could be taken into account as additional punishment”. If that be the correct approach, it would be doubtful whether the impact on the offender’s family and relatives could constitute a factor in mitigation, and even more doubtful that it could properly be labelled as “extra-curial punishment”. The effects on the family of a person’s imprisonment are inevitable and severe.
Other Sources:
Cases:
Wanstall v R [2024] NSWCCA 167 (at [36] and [49] re loss of career).
Duncan v R [2012] NSWCCA 78 (at [28].
EINFELD v REGINA [2010] NSWCCA 87 (at [85] - [97]).
SILVANO v R [2008] NSWCCA 118 (at [29])
R v Wilhelm [2010] NSWSC 378 (at [21])
R v Obeid (No12) [2016] NSWSC 1815 (at [102])
Kearsley v Regina [2017] NSWCCA 28 (at {76})
Christodoulou v R [2008] NSWCCA 102 (at [41]–[42] self-inflicted injuries)
Babineau v R [2016] NSWDC 354 (a sentence cannot be mitigated to avoid some other legislative provision or consequence eg. licence disqualification at [31])
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