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Western Australian Student Law Review |
Nicola Thomas-Evans[*]
Sentencing—Offender’s Remorse—Social Media—Facebook—Twitter—Authenticity
The use of social media platforms such as Facebook, Twitter, YouTube and Instagram is increasingly widespread, by both Australian and international communities. There have been many recorded instances of criminal offenders using social media to discuss details of their offending behaviour, or to demonstrate their attitude towards their offending behaviour, through their shared content on social media accounts. This article provides a brief background to the sentencing framework in Western Australia and psychological research on feelings of remorse. It goes on to discuss domestic and international trends relating to the consideration of expressions of remorse on social media platforms as evidence, particularly in cases heard in Australia and the United States. Ultimately, this article argues that if an offender expresses behaviours or opinions on their social media platforms that could inform a sentencing court of their feelings of remorse or lack thereof, that evidence should be considered by the court, provided that the usual evidential considerations regarding authenticity and admissibility are satisfied.
Sentencing of offenders in the criminal justice system is necessarily complex. It affects the lives of many individuals and involves the impartial consideration of a number of factors. Sentencing is often controversial; it is an area of criminal justice that is widely reported in the media and discussed amongst the general public, sometimes provoking political action.[1] When an offender’s criminal behaviour is publicly discussed, the subject of their feelings of remorse and its authenticity is often raised. Remorse can be defined as a ‘feeling of shame, regret and contrition’.[2] It is an expected consequence of an individual’s wrongdoing by society,[3] and is often considered by sentencing judges in criminal judgments.
An offender’s feelings of remorse for their actions can be deduced in a number of ways. Examples include a plea of guilty and post-offending behaviour, including offender’s commentary and their conduct in criminal proceedings.[4] Considering that society is increasingly utilising social media technologies such as Facebook and Twitter[5] for the purposes of everyday communication, these technologies have presented a new avenue through which offenders can articulate their attitudes and opinions surrounding their offending behaviour. This article evaluates whether those attitudes and opinions, when expressed on social media, should be taken into account in the sentencing process as evidence of remorse — or lack thereof.
This article begins by detailing the sentencing framework within Western Australia and the Australian position on sentence construction. It then provides a brief discussion of remorse and why it is considered in sentencing. The main focus of the proceeding discussion is an evaluation of the utility of using an offender’s shared social media content to ascertain whether they are remorseful. Reference will be made to some examples of domestic and international criminal cases where social media technologies have been involved in addressing the issue of remorse.
This article concludes that social media evidence should be included as one of a number of sentencing considerations, when admissible and appropriate. When properly evaluated, social media evidence can provide useful insights into offender’s feelings of remorse, or lack thereof, and can give weight to other mitigatory or aggravating factors that exist in the circumstances of the case. When properly incorporated into sentencing considerations, social media evidence can assist a judge in arriving at the correct sentence. The article also recommends how these technologies should be appropriately relied upon and incorporated into Western Australian sentencing hearings.[6]
The sentencing framework in Western Australia is grounded in the provisions of the Sentencing Act 1995 (WA) (‘Act’). In particular, pt 2 of the Act focuses on principles of sentencing and relevant considerations to be taken into account in the sentencing process. That part of the Act focuses on the principle of commensurability,[7] and outlines a range of factors that determine the seriousness of the offence. The relevant factors include: aggravating factors;[8] mitigating factors;[9] the statutory penalty of the offence;[10] and the circumstances of the offence, including the vulnerability of any victims.[11]
Another relevant provision to note is s 9AA of the Act. This provision allows a maximum reduction from the head sentence[12] of an offence of 25 per cent for a plea of guilty.[13] The rationale behind the provision is ‘to recognise the benefits [of a guilty plea] to the State, and to any victim of or witness to the offence’.[14] However, it is arguable that a guilty plea is also an indication of remorse from the offender.[15] It is worth noting that an expression of genuine remorse from the offender is not expressly included as a mitigating factor in the legislation, nor as a relevant sentencing consideration in the Act.[16]
In Cameron v The Queen,[17] a distinction was made between the benefit to the state of a guilty plea (also called the utilitarian value), and subjective considerations such as personal remorse and acceptance of responsibility for offending behaviour. The decision reflected the position that the utilitarian values of a guilty plea were not taken into consideration in sentencing an offender.[18] This decision predated the insertion of s 9AA, which effectively reversed this principle, as s 9AA enshrines the utilitarian value of a guilty plea.
The construction of s 9AA has been considered in a number of cases since the introduction of the provision in 2012.[19] For example, in Abraham v The State of Western Australia,[20] the Court found that the construction of s 9AA(2) allowed the strength of the prosecution’s case to be taken into account in the discount afforded for pleading guilty at the earliest possible opportunity. In practical terms, this means that if the prosecution’s case is strong, then a plea of guilty does not attract as much of a reduction in the sentence as when the prosecutor’s case is weak. This is because if the prosecution has a particularly strong case, then the resources allocated to the trial would be significantly less to achieve the required burden of proof. Therefore, the plea of guilty does not have as much utilitarian value attached to it. Furthermore, another consequence of a strong prosecutor’s case is the reduced pleading options available to the accused. When the only plea available is that of guilty, arguably less remorse is reflected by that plea.
There are two different methods of sentence construction: the two-stage approach and the instinctive synthesis approach. The latter has been cited with approval in Australian jurisdictions.[21] The two-stage approach firstly determines a sentence term by making a proportional deduction from the prescribed maximum, then secondly, makes additions or subtractions from that term according to the circumstances of the case.[22] This approach has been criticised as being a mechanical or mathematical approach that narrows the discretion of the sentencing judge and likely to produce erroneous results.[23]
The instinctive synthesis approach was described by Gaudron, Gummow and Hayne JJ in Wong v the Queen:
Attributing a particular weight to some factors, while leaving the significance of all other factors substantially unaltered, may be quite wrong. We say 'may be' quite wrong because the task of the sentencer is to take account of all of the relevant factors and to arrive at a single result which takes due account of them all. That is what is meant by saying that the task is to arrive at an 'instinctive synthesis'. [24]
Although the High Court agreed with previous cases that had favoured an instinctive synthesis approach,[25] it also recognised that the disadvantage to this approach is that the decision-making appears less transparent. In Markarian v the Queen,[26] the High Court was unwilling to set defined universal rules as to what, definitively, constitutes each approach. The Court was also unwilling to describe the preferable approach as an ‘instinctive synthesis’,[27] but did state that the end result of sentence construction should be a conclusion reached based on the weighing of all relevant factors.[28]
The role that sentencing serves in the criminal justice system is varied. Feinberg detailed the four justifications for sentencing that were included in sentencing reformation legislation in the United States.[29] These justifications included deterrence, incapacitation, retribution, and rehabilitation.[30] Frase argues that ensuring that sentences are proportional to the offence and the culpability of the offender satisfies retributive and utilitarian jurisprudential standpoints.[31] Frase also states that ensuring sentencing meets principles of proportionality and consistency, across cases with similar circumstances, reflects and enforces the values of the community and maintains the community’s faith in the criminal justice system.[32] The visibility of sentencing forming part of the criminal justice system also satisfies the need for general deterrence; if individuals can see crime being punished, this may act as a deterrent for future criminal acts.[33]
The proportionality principle has been grounded in Australia by the High Court in Veen v R (No 2),[34] where Mason CJ, Brennan, Dawson and Toohey JJ stated:
[t]he principle of proportionality is now firmly established in this country. It was the unanimous view of the court in Veen (No 1) that a sentence should not be increased beyond what is proportionate to the crime in order merely to extend the period of protection of society from the risk of recidivism on the part of the offender.[35]
When viewing sentencing from a rehabilitative perspective, the courts’ role is to take offenders out of the community and place them in a rehabilitative environment to reduce their risk of recidivism.[36] Specific deterrence goals are also satisfied in this approach because if the offenders are incapacitated, they are theoretically unable to commit further crimes.[37] Feinberg did acknowledge that in the reformulation of the sentencing legislation in the United States, academics had cautioned that ‘a sentence of imprisonment is not an appropriate means of promoting correction and rehabilitation’.[38]
The concept of remorse in sentencing proceedings is poorly formulated and controversial. There is contention within the legal and psychological communities[39] regarding whether feelings of remorse should be considered during sentencing.[40] In judgments that discuss remorse as a valid consideration, the concept of ‘genuine remorse’ is often raised by judges.[41] The distinction between ‘actual or contrived regret over the act committed ... or for the harm done to the victim’[42] (genuine remorse) is often juxtaposed with the remorse arising from the unpleasant experience of the offence being discovered and punished. Although the concept of remorse does not appear expressly within the Act, there is extensive evidence of its consideration in sentencing at common law.[43] In Neal v R,[44] Murphy J referred to remorse as a mitigating factor:
Contrition, repentance and remorse after the offence are mitigating factors, leading in a proper case to some, perhaps considerable, reduction of the normal sentence ... This factor of contrition is generally given insufficient weight in sentencing in Australia. [45]
The remorseful offender is often viewed in a more favourable light than one who does not demonstrate remorse.[46] The rationale for this view is that the acceptance of responsibility for the offending behaviour leads to a negative, uncontrolled and unwanted emotional response; the offender is already suffering from their own negative emotional reaction which is, in itself, viewed as a punishment. This negative emotional response potentially serves to reduce the risk of recidivism[47] and leads to greater rehabilitative prospects.[48]
However, there have been several reasons given in legal and psychological literature as to why an offender may not show obvious signs of remorse. Examples include psychological impairment, psychological defence mechanisms, such as denial, and the delayed onset of emotional reaction to the offending behaviour.[49] In those instances, it is not the case that the offender does not feel genuine remorse; they simply do not show it at such a time that would lead to a sentencing benefit.[50]
Non-verbal behaviours such as crying, looking at the ground, turning down the corners of the mouth, a sad demeanour, covering the face with hands, and slouching have been identified as behaviours which often lead to a conclusion that the offender is remorseful.[51] Verbal cues that subjectively indicate remorse are statements including apologies, requests for forgiveness, and the voice of the offender being unstable.[52]
Offenders who display verbal and non-verbal indicators of remorse have been widely reported to receive lighter penalties for offending behaviour than those who appear to not exhibit genuine remorse.[53] In a study of facial expressions in a mock judicial setting, MacLin et al found a significant leniency bias to offenders who showed remorseful facial expressions.[54] In another study of penalties applied by police officers for speeding infringements, Day and Ross found that expressions of remorse resulted in reduced ticket costs and the increased probability of offenders receiving a warning, rather than a speeding fine.[55]
A pertinent question for the sentencing judge is whether expressions of personal contrition or remorse should be taken into account in sentencing if they are expressed in a manner other than a guilty plea. If an offender expresses remorse by pleading guilty, writing an apology to the victim and their family, or writing a statement of regret on their Facebook page, should these actions be regarded differently? The following section of this article will discuss the prolific use of social media in contemporary society and provide case examples where actions and comments made via social media surrounding offending behaviour have been utilised by courts in order to ascertain remorse.
The use of social media in Australian society has become increasingly more commonplace over the last decade. Social media is defined as ‘highly interactive platforms via which individuals and communities share, co-create, discuss and modify user-generated content’.[56] There are many different types of social media platforms. Platforms like Facebook are used for the creation of a public profile page and for the listing of friends; others such as Twitter are personal blog pages, while YouTube and Instagram are for the sharing of video and picture media.[57] As of July 2014, social media platforms such as Facebook and Twitter had approximately 13 million Australian subscribers.[58]
Many individuals use their social media pages to express their opinions and feelings about events in their life.[59] If an offender uses social media platforms to express remorse — or conversely, express inflammatory opinions — of their offending behaviour, should a sentencing judge consider these as mitigatory or aggravating evidence of remorse?
There are several case examples, of both international and domestic origins, in which social media evidence has been tendered to demonstrate feelings of remorse. A number of specific examples will be discussed in further detail below. Rather than being an exhaustive account of all cases involving social media evidence to indicate remorse, the following discussion intends to draw attention to a broader trend occurring in contemporary sentencing.
The Steubenville Rape Case is a case from Steubenville, Ohio. The conduct of a number of young football players during an evening party resulted in criminal charges being brought against at least two members of the local football team, and public outrage followed extensive media coverage. Trent Mays and Ma’lik Richmond were the defendants in this case, who were 17 and 16 years old respectively at the time of the offences. Trent Mays was charged with rape and illegal use of a minor in nudity orientated material or performance, and found delinquent.[60] Ma’lik Richmond was charged with rape and found delinquent.[61]
The events that preceded the offending behaviour occurred on 11 August 2013 when the 16 year old victim, the defendants, and their friends attended a party where the group engaged in underage drinking. The victim became extremely intoxicated; her levels of intoxication were noticed by several witnesses who observed her stumbling and vomiting.[62] As a result of her intoxication, the victim also had to be helped or carried at several points throughout the evening by the defendants or their friends. The victim was sexually assaulted at different locations by the defendants.[63]
These incidents were captured on video and by photographs where the victim appeared to be unconscious or unresponsive.[64] This media was then uploaded and distributed via the social media sites Twitter, Instagram, Facebook and YouTube.[65] Friends of the defendants posted several controversial remarks on Twitter such as ‘[s]ong of the night is definitely Rape Me by Nirvana’ and ‘[s]ome people deserve to be peed on’,[66] which were shared by Mays. A video was also taken and uploaded to YouTube featuring a friend of the defendants, Michael Nodianos describing the victim as ‘f***ing deader than JFK’ and stated ‘[t]hey raped her harder than that cop raped Marcellus Wallace on Pulp Fiction’.[67]
The various social media and text message evidence was not only used to build a prosecution case but was evaluated by Lipps J in his sentencing of Mays and Richmond. Although both defendants apologised to the victim in court and Richmond wept openly, Lipps J did not appear to accept this display of remorse as genuine. Lipps J stated that the defendants ‘might be dealing with emotions since the consequences were now dawning on them’.[68] In delivering his judgment, Lipps J described the actions of the defendants as ‘profane and ugly’[69] and stated that Mays and Richmond were not amendable to treatment or rehabilitation in the community.[70]
People v Binkerd[71] is a Californian case involving a 22 year old defendant, Jessica Binkerd. On 6 August 2006, Binkerd was driving Alex Baer, her 25 year old co-worker, home after they had attended a party together.[72] Binkerd was intoxicated and had a blood alcohol level that was twice the legal limit in California.[73] Binkerd veered into oncoming traffic and crashed into another car, injuring driver Sara Maynez and killing Baer. Binkerd was charged with vehicular manslaughter without gross negligence, and driving under the influence of alcohol causing injury.[74]
In sentencing Binkerd, Lodge J ignored requests from the family of the victim for leniency and the recommendations of the probation department for a one year custodial sentence.[75] Justice Lodge instead focused on photographs posted by Binkerd to her MySpace social networking profile following the accident, which Binkerd had not removed before her sentencing hearing.[76] These photographs showed Binkerd drinking alcohol with her friends in a t-shirt that said ‘I heart Patrón’ (Patrón being a type of tequila) which, in the opinion of Lodge J, indicated a complete lack of remorse. Ultimately, following an appeal of her initial five year sentence, Binkerd received a three year jail sentence for her actions.[77]
R v Acar[78] is an unreported judgment from the Criminal Division of the Supreme Court of Victoria. The defendant, 24 year old Ramazan Acar, was charged with murdering his infant daughter, Yazmina Micheline Acar, on 17 November 2010, six days before her third birthday. The murder was described as being an act of revenge on the victim’s mother, Rachelle D’Argent, who Acar had previously been in a tumultuous and abusive relationship with for eight years.[79]
The relationship with D’Argent had been marked by violence and Acar’s tendency to become possessive and jealous. Two months prior to the murder, D’Argent had obtained an intervention order against Acar, due to threats made against her and fears for the safety of herself and Yazmina. Acar breached the intervention order on several occasions and was subsequently denied access to Yazmina by D’Argent.[80]
On the day of the murder, Acar gained access to a custodial visit of Yazmina by consent of D’Argent after displaying a 30cm knife and showing evidence of self-harm. Over the following hours, several exchanges of communication occurred between Acar and D’Argent after Acar had failed to return Yazmina at an agreed time. The communication was made via text message, telephone calls and Facebook messages.[81] The Facebook messages Acar left for D’Argent, included ‘bout 2 kill ma kid’ (sic), ‘it’s ova I did it’ (sic) and ‘pay bk u slut’ (sic).[82]
In sentencing, the Court spoke extensively on whether Acar had exhibited genuine remorse for his actions. Justice Curtain described the taunts, threats, and intentions of Acar contained in the Facebook messages and telephone communications as chilling.[83] The Court referred to Acar’s conduct in his dealings with police officers and doctors and stated that, although Acar appeared to demonstrate remorse, it was not genuine because Acar did not question his personal issues that led to this tragedy occurring.[84] Curtain J also stated ‘I accept that you are remorseful for your conduct, but you have yet to express any remorse and contrition for the irreparable pain and loss you have caused the mother of your daughter, her family and, indeed, your own family’.[85] For this lack of genuine remorse, issues regarding community safety, and the ‘chilling and horrific’ facts surrounding the murder, the Court imposed a life sentence on Acar with a 33 year non-parole period.[86]
Belbin v Bennett[87] is an unreported judgment from the Supreme Court of Tasmania. The applicant, Belbin, was 20 years old at the time of the offence. Belbin was charged with common assault and sentenced to five months imprisonment to be wholly suspended for two years.[88]
The facts of the case state that the assault occurred on the evening of 29 June 2010. The complainant appeared to have had contact with Belbin’s 12 year old sister. The facts detailed in the appeal are not clear on the nature of the contact, although the implication was that sexual contact had taken place between the 17 year old complainant and Belbin’s sister.[89]
On the night of the assault, Belbin, along with three other individuals, travelled to the home of the complainant and his family. When Belbin spoke to the complainant and ascertained that the complainant knew his sister, he punched the complainant several times in the face. This resulted in injuries to the complainant, including a heavily bleeding nose and substantial cuts to his face.[90] One of Belbin’s accomplices then assaulted the complainant’s father, who was in the process of trying to halt Belbin’s assault on the complainant.[91]
The lack of genuine remorse shown by Belbin was exhibited in several ways. Following the assault, Belbin made several open admissions and boasted about the assault on Facebook, stating ‘I snapped and just bashed his head in’.[92] Belbin made remarks to the police stating that the complainant had deserved the assault.[93] Belbin also made comments to his probation officer stating that he ‘felt nothing for the complainant’, describing him as a ‘worthless person’.[94] The appeal against Belbin’s sentence was dismissed due to the seriousness of the offence, Belbin’s lack of remorse demonstrated by bragging on Facebook and the Court’s view that the sentence was not manifestly excessive.[95]
R v Loveridge[96] is an unreported judgment from the Criminal Court of Appeal of New South Wales. The respondent, Loveridge, was 18 years old at the time of the offences and was on a conditional liberty order due to an assault occasioning actual bodily harm offence Loveridge had been convicted of on 7 June 2012. The 7 July 2012 offences before the Court included manslaughter, assault occasioning actual bodily harm, and three counts of assault.[97] The offences were committed in the same violent spree on the evening of 7 July 2012, while Loveridge was intoxicated. Loveridge had an extensive criminal record prior to the offences on appeal.
During the appeal case for the July offences, the Court of Appeal considered a conviction Loveridge had obtained one month prior. The offence on 7 June 2012 resulted in a charge of assault occasioning actual bodily harm after Loveridge gate-crashed a house party and punched the host of the party, causing him facial bruising.[98] Loveridge made full admissions to the police and the next day wrote a full public apology on the victim’s Facebook page. Due to these admissions and the apology on Facebook, the Parramatta Children’s Court noted the presence of genuine remorse and had taken this into account when sentencing Loveridge.[99]
The Court considered specific deterrence was important in this case because of the close temporal connection between the 7 June 2012 and 7 July 2012 offences:
It may be inferred readily that the Respondent’s stated remorse and contrition was taken into account, in a significant respect, in the imposition of a non-custodial sentence on 7 June 2012 for a significant offence of violence committed by him. The context of that offence was, of course, entirely antisocial, involving as it did, gate-crashing of a party by the Respondent and others with the Respondent initiating violent conduct thereafter on the private property of the victim.
Yet one month later, the Respondent embarked upon a course of conduct which saw himself and a number of his companions consuming a very significant amount of alcohol, before attending Darling Harbour and then Kings Cross. Both the Respondent’s acts and his words indicated an expectation on his part that trouble would result. Far from exercising restraint in accordance with the terms of his conditional liberty, and utilising such assistance and support in the community as was available as a condition of his probation, the Respondent embarked upon a course of violent conduct which culminated in the death of a young man and the assaulting of others selected randomly in a public street.[100]
The Court of Appeal were no longer willing to accept admissions of remorse from the respondent on social media or otherwise, for the offences under appeal. The rejection of remorse as a sentencing consideration in the offences under appeal were due to his acts of recidivism following express statements of remorse in his recent criminal behaviour. The respondent’s recidivism had enlivened greater concerns relating to deterrence and public safety.
R v Benjamin Thomas Price; Ex parte Attorney-General (Queensland)[101] is an unreported judgment from the Queensland Court of Appeal. At the time of the offences, the respondent Benjamin Price was 31 years old and a Senior Constable in the Queensland police force.[102] Price was charged with four counts of unlawful assault, the dates of the offences ranging from 1 September 2007 to 25 May 2008.[103] The offences involved the use of excessive force during Price’s duties as a police officer, and involved actions such as punching the complainants in the face,[104] and pulling them up from the ground by their hair.[105]
The sentencing judge at first instance took into account a lack of remorse in sentencing Price.[106] This lack of remorse was evidenced in part by activity on the respondent’s Facebook account, namely comments to other police officers about Price’s reasons for pleading guilty to the offences.[107] This apparent lack of remorse was assessed in conjunction with the respondent’s conduct throughout the criminal proceedings. Instead of accepting sole responsibility for his actions in applying excessive force to each victim, Price consistently referred to acts of apparent provocation from each of the victims in oral submissions, arguing this caused his excessive response.[108]
In assessing the appeal on the ground of remorse in light of the respondent’s Facebook comments and oral submissions, the Court of Appeal stated:
Although there was a plea of guilty, it was not early and the statements made by the respondent to other police officers tended to shift the blame for his conduct onto his victims. A finding of lack of genuine remorse was justified.[109]
Price was sentenced to five years’ imprisonment with an eligibility period for parole after one third of his sentence had been served.[110]
As evidenced above, several criminal cases in Australia and the United States have relied on evidence of an offender’s actions and expressions on social media platforms in order to ascertain whether genuine remorse is exhibited by the offender. In each case, there appears to be a balanced judgment and assessment of the social media activity with other factors such as a guilty plea, remarks made during the course of criminal proceedings, and the opinions and attitudes expressed in psychological criminal processes, such as pre-sentencing reports.
This article argues that the way that social media evidence has been used in the domestic and international criminal cases above is correct. However, social media evidence, like other forms of evidence, has inherent limitations. The criticisms of using social media evidence will be canvassed below, along with recommendations as to how judges determining feelings of remorse in future criminal law cases in Western Australia should utilise social media evidence.
It is apparent from the various cases discussed above that a domestic and international trend exists whereby social media evidence may assist a court’s evaluation of an offender’s feelings of remorse. There appears to be a lack of research in this area with respect to sentencing in Australia. As such, research from the United States will be examined, and a recommendation for further research directions in Australia will be discussed.
Judiciaries domestically and internationally are realising the minefield of legal implications social media technologies are posing in contemporary society. While these technologies have been developing and growing rapidly, in many jurisdictions the law has been slow to take into account its interactions with these technologies.[111] However, the use of these technologies has been an attractive option as a fast and economic method of obtaining evidence.[112] These legal issues are not limited to sentencing.
In the United States, activities on social media technologies have provided grounds for defamation litigation and prosecution.[113] It is now common practice in United States litigation for discovery of social media evidence to occur and for that evidence to be tendered when indicative of the mental elements of a case or offence — for example, state of mind, motive, or intent.[114]
The use of social media evidence as a factor in demonstrating remorse in United States Driving Under the Influence (‘DUI’)[115] offences has been firmly established.[116] The case involving Jessica Binkerd, discussed above, is not a unique example of where social media has been evidenced to assist in demonstrating a lack of remorse.[117] The cases of 22 year old Lara Buys and 21 year old Joshua Lipton mirror the use of social media evidence during sentencing proceedings.
Lara Buys was convicted in a Santa Barbara Superior Court and was sentenced to two years in jail. Buys was involved in a drunk driving accident that caused the death of her best friend.[118] A few months after the accident Buys posted a number of photographs of her attending parties and binge drinking on her social media accounts. The two year sentence was considered appropriate by the Court due to the lack of remorse she demonstrated by posting the photographs.[119]
Joshua Lipton was convicted in a Rhode Island Superior Court and was sentenced to two years in jail. Lipton was involved in a drunk driving accident that seriously injured the driver of another vehicle. Two weeks after the accident, Lipton attended a Halloween party dressed as a jail inmate in an orange jumpsuit. In the sentencing hearing the Assistant Attorney General displayed the photographs in a presentation with the title ‘Remorseful?’.[120] As with Buys and Binkerd, this evidence was relied on to indicate a lack of remorse, amongst other sentencing considerations.[121]
The trend in using social media evidence in the United States is that once evidentiary challenges of authenticity and admissibility are met, by whichever standard the courts apply,[122] the evidence is used in conjunction with a range of other sentencing considerations to assess the genuine remorse of the offender.[123]
In Australia, there does not appear to be a trend of social media evidence being used to assess expressions of remorse in particular types of criminal behaviour, such as the United States DUI cases. Social media evidence has been used in a range of different criminal cases, and by other judicial and administrative bodies such as the Refugee Review Tribunal (‘RRT’).[124] Wagstaff and Tranter discuss the emergence of a number of RRT decisions that have involved the use of social media evidence to try and construct an objective, factual picture of the applicant’s life. The authors point to this practice being erroneous,[125] and discuss many decisions where applicants have been denied protection visas.[126] The RRT has used the social media evidence to assist in the assessment of claims made by the applicants and assessed whether these claims were mirrored on their Facebook pages.[127]
The trend in the United States is the same as the trend noted in Australia. In addition to the examples noted above, the case of Eva Scolaro illustrates the function of remorse amongst other sentencing factors such as specific deterrence, general deterrence and proportionality.[128] 24 year old Scolaro was involved in an altercation at a nightclub on 8 March 2009 with 26 year old Roxanne Hemsley. Scolaro poured her drink down the back of Hemsley and then smashed her glass into Hemsley’s face.[129] Hemsley required between 32 and 36 sutures internally and externally, in addition to plastic surgery for deep lacerations to the left side of her face.[130] Scolaro was charged with unlawful wounding and sentenced to 18 months jail, with a non-parole period of nine months.
Following the verdict, Scolaro appealed her conviction and sentence.[131] There was wide media criticism of Scolaro’s insensitivity and lack of remorse in the months following the attack, as she attended a Halloween party dressed as someone with facial lacerations similar to those suffered by Hemsley, and posted photographs of this on her Facebook account.[132]
In the appeal against the sentence, Martin CJ considered the factors that had been taken into account by the sentencing magistrate at first instance. These factors included the stable family background of Scolaro, her lack of criminal record, and her stable employment record.[133] The public sentiment regarding the Facebook pictures and the effect of this media on Scolaro was also considered by the sentencing magistrate.[134]
Chief Justice Martin also turned his mind to other sentencing factors:
Turning to the remarks of the sentencing magistrate in this matter, he specifically referred to the aspects of the sentencing process which require consideration to be given to deterrence, both specific ... and general ...These are, of course, important considerations in the sentencing process, as are the rights and interests of any victim of the offence, and in homicide cases, the rights and interests of the victim's family. The vindication and recognition of those interests by the sentence imposed is another important aspect of the sentencing process. However, these are only some of the considerations that form part of the sentencing process. Although not specifically referred to by the magistrate, there are many others, including the desirability of a sentence which best protects the community by enhancing the prospects of the offender's rehabilitation and reducing the prospect of reoffending.[135]
However, Martin CJ made it clear that particular emphasis must be placed on community expectations of the sentencing process.[136] This requirement is stated under s 6 of the Act, and Martin CJ emphasised that the punishment for the crime should be commensurate with its seriousness.[137] Ultimately, Scolaro’s sentence was reduced to 12 months imprisonment with parole eligibility due to the time she had served in jail.[138] The judgment in this case demonstrates the role of social media evidence to assess remorse in Australian sentencing; it is not a distinctive or stand-alone factor. Rather, social media evidence of genuine remorse is one of a number of sentencing factors that needs to be considered together in a process of instinctive synthesis to arrive at the correct sentence.[139]
The use of social media evidence in the cases described in the second part of this article generate the idea that this type of evidence can be readily used and considered by a court. Literature has identified serious critiques of the use of social media evidence which is discussed below.[140]
The first issue that is often raised in relation to the utilisation of social media evidence is authenticity. There does not appear to be an authority in Australia which directs the court in how to proceed with issues of authenticity. The United States case law has proceeded in two very different directions on this issue.[141] The first line of case law will not accept social media evidence unless there is a definitive determination that the evidence is authentic. The second will allow admissibility of social media evidence if there is sufficient evidence to determine authenticity, such that a reasonable person would be satisfied.[142]
Wagstaff and Tranter argue that the United States place too much emphasis on photographic evidence obtained from social media accounts.[143] The authors argue that the ease of availability and utilisation of photographic manipulative software, such as Adobe Photoshop, with relatively novice users means that the authenticity of these photographs should not be taken at face value.[144] The authors state:
Those with little expertise or experience are able to change eye colours, remove or blur identifying features such as a facial blemish or scar and adjust tones and lighting. Users with slightly more advanced knowledge are able to alter an image even more significantly; adding or removing entire objects or subjects in a photo, making a subject appear younger or older, changing hair colour, clothing and even altering the weather or background. These digital manipulations are difficult to detect as any evidence that change has been made or even the origins of the photograph can be made impossible to identify.[145]
However, in the cases above where very specific photographs have been taken to record crime, such as the Steubenville rape case, or to document the offender’s contempt of the suffering they have inflicted on the victim, as in Scolaro v Shephard, it is difficult to argue that these photographs are not an authentic, useful or valid resource for a court to consider in sentencing. This is particularly the case where offenders have shared the photographs, so that they can be viewed by the wider audience of their social media profile. This occurred in the Steubenville rape case where Mays had shared photographs of the crime on his social media accounts.[146] This could be viewed as a type of approval or endorsement of the criminal activity and proves the authenticity of the photographs.
Wagstaff and Tranter also argue that social media accounts, such as Facebook, are susceptible to being hacked by third parties. This has happened as recently as 2013 and during this wave of hacking approximately 250,000 Facebook accounts were affected.[147] The authors therefore argue that due to the security issues present, the information may have reliability issues.[148] However, issues of security and authenticity could be negated with the accused being afforded the opportunity to challenge the social media evidence and for that evidence to be given lower weight if it appears to contradict other indicators of remorse.
Wagstaff and Tranter argue that the reliability of social media evidence should be questioned.[149] The authors argue that because social media accounts are largely comprised of user-generated content, there are a number of psychological factors that interact with the information that is displayed and its truthfulness in the context of the user’s life.[150] The authors argue that individual differences, such as personality type, may discern social media posting behaviour.[151]
Whether users post a lot of information to enhance and document their relationships and events in their life, or whether they choose to post limited information and simply monitor the social media pages of other people, has been demonstrated as being reflective of levels of outgoingness.[152] Levels of extraversion were also found to have an effect on the types of information that was posted onto a social media account.[153] Higher levels of extraversion demonstrated more personal details being omitted, leading to extraverted individuals ‘advertising’ themselves more.[154] The authors also state that individuals with lower levels of neuroticism[155] were less likely to post photographs to their social media accounts.[156]
Wagstaff and Tranter also draw attention to the inherent biased picture that social media can illustrate, due to the user generated nature of its content.[157] For example, just because an individual only uploads happy photographs and posts information about joyful occasions does not mean that there are no events of distress or sadness in their life.[158]
Remorse is a complex emotion that is experienced in different ways by individuals, and is often linked with prospects of rehabilitation and rates of recidivism. Remorse is often considered in the Australian common law, in criminal cases, for its subjective value. Increased use of social media in contemporary society has led to an increase in offenders using these platforms as a medium to express their remorse, or lack thereof. This presents a new evidential opportunity for a court’s consideration of remorse in the sentencing process.
There are domestic and international trends occurring in relation to social media evidence assessing remorse. Social media evidence is accompanying a number of other subjective behavioural and procedural indicators of remorse displayed by an accused, such as conduct in criminal proceedings, guilty pleas, or apologies to the victim and their family. It is important to note that in sentencing, remorse forms just one of a number of relevant considerations before a court. As demonstrated by the above cases, these considerations include deterrence, the rights of the victim and their families, community protection, rehabilitation, and the expectations of the community in the criminal justice system.
Although there is a need to recognise the limitations of social media evidence, specifically the criticisms noted above, it is important to note the benefits of this evidence. These benefits include the relative ease, speed and inexpensive nature of its collection in comparison with other forms of evidence. Social media evidence should be utilised as an effective evidentiary tool by sentencing courts in assessing feelings of remorse, in accordance with specific guidelines. Recommendations for its correct use are provided below.
In conclusion, the following recommendations are tendered in order to direct future research and practice in this area of sentencing:
• Further research should be conducted into remorse and the rationale for its inclusion in sentencing considerations. This research could, for example, assess whether remorseful offenders have reduced rates of recidivism.
• Further research should be conducted into the effect that social media evidence has in the sentencing process, particularly in Australia. This article has identified a distinct lack of Australian research in an area of sentencing that is constantly developing and evolving.
• Further analysis of the evidentiary issues surrounding social media in Australian jurisdictions should be conducted.
• Further analysis of the nature and reliability of social media evidence should be conducted in Australia and its findings presented to judicial and administrative bodies. This prevents overreliance on, or a superficial evaluation of, this evidence occurring. This takes into account the psychological interactions with social media use noted by Wagstaff and Tranter above.
• It is recommended that Australia should follow one of the examples from America regarding authenticity of social media evidence. It is recommended that Australia adopt the test of authenticity at the level that a reasonable person would believe it to be authentic, rather than proving its authenticity beyond a reasonable doubt. As identified above, there are concerns regarding the security of social media accounts. However, as with all forms of evidence, the accused has the ability to refute this evidence if it is inauthentic. For example, if there is evidence that the account has been accessed from a geographical location other than one the accused accesses it from, or if they share their social media account login details with other people.
[*] Nicola is a final year Juris Doctor student at Murdoch University. Nicola would like to thank Lorraine Finlay for her supervision of this article.
[1] Chief Justice Peter McClellan, ‘Sentencing in the 21st century’ (2012) 11 The Judicial Review 22.
[2] Trishia Mann (ed), Australian Law Dictionary (Oxford University Press Australia and New Zealand, 2010) 497.
[3] M Kimberley MacLin et al, ‘The Effect of Defendant Facial Expression on Mock Juror Decision-Making: The Power of Remorse’ (2009) 11(2) North American Journal of Psychology 323.
[4] Emily P Corwin et al ‘Defendant Remorse, Need for Affect, and Juror Sentencing Decisions’ (2012) 40 The Journal of the American Academy of Psychiatry and the Law 41, 42.
[5] Jan H Kietzmann et al, ‘Social Media? Get Serious! Understanding the Functional Building Blocks of Social Media’ (2011) 54 Business Horizons 241, 241.
[6] While it is recognised that an issue of admissibility with social media evidence may exist, it is not within the scope of this article to discuss the issue of admissibility. This article discusses the use of this evidence, assuming that there is no admissibility challenge.
[7] Sentencing Act 1995 (WA) s 6(1): ‘[a] sentence imposed on an offender must be commensurate with the seriousness of the offence’.
[8] Ibid ss 6(2)(c), s 7.
[9] Ibid ss 6(2)(d), s 8.
[10] Ibid s 6(2)(a).
[11] Ibid s 6(2)(b).
[12] Ibid s 9AA(1): ‘for an offence, means the sentence that a court would have imposed for the offence if (a) the offender had been found guilty after a plea of not guilty; and (b) there were no mitigating factors’.
[13] Ibid s 9AA(3) provides that the earlier the plea of guilty is made in the proceedings the greater the reduction in sentence.
[14] Ibid s 9(AA)(2).
[15] Western Australia, Parliamentary Debates, Legislative Council, 26 September 2012, 6521c-6528a (Sue Ellery).
[16] It is not within the scope of this article to discuss other jurisdictions’ statutory provisions regarding remorse, however it is noted that other Australian jurisdictions have explicit provisions contained in their statutes. See, eg, the Crimes (Sentencing) Act 2005 (ACT) s 33(w).
[17] [2002] HCA 6; (2002) 209 CLR 339.
[18] Ibid [13] (Gaudron, Gummow and Callinan JJ).
[19] See, eg, Abraham v State of WA [2014] WASCA 151; Pryor v State of WA [2014] WASCA 143.
[21] Markarian v the Queen [2005] HCA 25.
[22] Ibid.
[23] Wong v the Queen [2001] HCA 64; (2001) 207 CLR 584, [74] (Gaudron, Gummow and Hayne JJ).
[24] Ibid 611–2 [75] (Gaudron, Gummow and Hayne JJ).
[25] See, eg, Wong v the Queen [2001] HCA 64; (2001) 207 CLR 584; R v Thompson (2000) 49 NSWLR 383; AB v the Queen [1999] HCA 46; (1999) 198 CLR 111.
[26] [2005] HCA 25, [36] (Gleeson CJ, Gummow, Hayne and Callinan JJ).
[27] See the comments of the High Court in Markarian v the Queen [2005] HCA 25, [39] (Gleeson CJ, Gummow, Hayne and Callinan JJ): ‘[t]he expression instinctive synthesis" may then be understood to suggest an arcane process into the mysteries of which only judges can be initiated. The law strongly favours transparency. Accessible reasoning is necessary in the interests of victims, of the parties, appeal courts, and the public. There may be occasions when some indulgence in an arithmetical process will better serve these ends. This case was not however one of them because of the number and complexity of the considerations which had to be weighed by the trial judge’.
[28] Ibid [37] (Gleeson CJ, Gummow, Hayne and Callinan JJ).
[29] Kenneth R Feinberg, ‘The Federal Guidelines and the Underlying Purposes of Sentencing’ (1997) 10(1) Federal Sentencing Reporter 39, 39–40.
[30] Ibid.
[31] Richard S Frase, ‘Punishment Purposes’ (2005) 58 Stanford Law Review 67.
[32] Ibid.
[33] Ibid.
[34] Veen v R (No 2) [1988] HCA 14; (1988) 77 ALR 385, 389 (Mason CJ, Brennan, Dawson and Toohey JJ).
[35] Ibid.
[36] Feinberg, above n 29.
[37] Ibid.
[38] Ibid.
[39] Martha Grace Duncan, ‘“So Young and So Untender”: Remorseless Children and the Expectations of the Law’ (2002) 102 Columbia Law Review 1469.
[40] It is not within the scope of this article to comprehensively canvass the arguments surrounding the inclusion or exclusion of remorse in sentencing judgments. These will be briefly outlined to give context to the later discussion on its reflection in social media.
[41] See, eg, JD v The State of Western Australia [2008] WASCA 147; Wallam v The State of Western Australia [2012] WASCA 115; A Child v The State of Western Australia [2007] WASCA 285.
[42] MacLin et al, above n 3.
[43] Neal v R [1982] HCA 55; (1982) 149 CLR 305; Harris v R [1967] SASR 316; R v Tiddy [1969] SASR 575; Darwin v Samuels (1971) 1 SASR 411, 423 (Walters J).
[44] [1982] HCA 55; (1982) 149 CLR 305.
[45] [1982] HCA 55; (1982) 149 CLR 305, 315 (Murphy J).
[46] Corwin et al, above n 4.
[47] Ibid.
[48] Ibid.
[49] Duncan, above n 39.
[50] Ibid.
[51] Ibid.
[52] Ibid.
[53] Rocksheng Zhong et al, ‘So You’re Sorry? The Role of Remorse in Criminal Law’ (2014) 40 The Journal of the American Academy of Psychiatry and the Law 39.
[54] MacLin et al, above n 3.
[55] Martin V Day and M Ross, ‘The Value of Remorse: How Drivers’ Responses to Police Predict Fines for Speeding’ (2011) 35 Law of Human Behaviour 221.
[56] Kietzmann et al, above n 5.
[57] Ibid.
[58] David Cowling, Social Media Statistics Australia – July 2014, (1 August 2014), Social Media News, <www.socialmedianews.com.au/social-media-statistics-australia-july-2014/#disqus_thread>.
[59] Kietzmann et al, above n 5.
[60] The State of Ohio v Mays (Adjudication and Disposition) (Court of Common Pleas, Juvenile Division, Jefferson County, Ohio Case No DL-2012-139 17 March 2013). A finding of delinquency is equivalent to a finding of guilt in an adult matter in Ohio criminal law.
[61] The State of Ohio v Richmond (Adjudication and Disposition)(Court of Common Pleas, Juvenile Division, Jefferson County, Ohio Case No DL-2012-138 17 March 2013).
[62] Ibid.
[63] Ibid.
[64] Ibid.
[65] Juliet Macur and Schweber, N, ‘Rape Case Unfolds on Web and Splits City’, The New York Times (16 December 2012) <www.nytimes.com/2012/12/17/sports/high-school-football-rape-case-unfolds-online-and-divides-steubenville-ohio.html>.
[66] Ibid.
[67] Laura Collins, ‘“First degree rape....lmao”: Revealed, Shocking Tweets at the Centre of a Second Steubenville Rape Claim’, The Daily Mail (7 December 2013) <www.dailymail.co.uk/news/article-2519570/EXCLUSIVE-First-degree-rape--lmao--Shocking-tweets-center-allegations-SECOND-Steubenville-rape-months-assault-scandalised-America.html>.
[68] Connor Simpson, ‘The Steubenville Verdict is in, and These Boys are Guilty’ The Wire (17 March 2013) <http://www.thewire.com/national/2013/03/steubenville-verdict-guilty/63194/> .
[69] Ibid.
[70] The State of Ohio v Richmond (Adjudication and Disposition) (Court of Common Pleas, Juvenile Division, Jefferson County, Ohio Case No DL-2012-138 17 March 2013).
[71] (2007) 155 Cal.App.4th 1143.
[72] Christina R Weatherford ‘Judicial Sentencing Discretion Post-Booker: Are Judges Getting a Distorted View Through the Lens of Social Networking Sites?’ (2011) 27(3) Georgia State University Law Review 673, 673.
[73] Ibid.
[74] People v Binkerd (2007) 155 Cal.App.4th 1143.
[75] Weatherford, above n 72.
[76] Philip K Anthony and C Martin, ‘The Modern Jury: Social Media go to Court’ (2009) The National Law Journal 1, 2.
[77] Weatherford, above n 72.
[79] Ibid [2]–[3] (Curtain J).
[80] Ibid.
[81] Ibid [4]–[10] (Curtain J).
[82] Ibid [11] (Curtain J).
[83] Ibid [39] (Curtain J).
[84] Ibid [47] (Curtain J).
[85] Ibid [57] (Curtain J).
[86] Ibid [63] (Curtain J).
[88] Ibid [1] (Crawford CJ).
[89] Ibid [14] (Crawford CJ).
[90] Ibid.
[91] Ibid [5]–[7] (Crawford CJ).
[92] Ibid [7] (Crawford CJ).
[93] Ibid [8] (Crawford CJ).
[94] Ibid [23] (Crawford CJ).
[95] Ibid [53] (Crawford CJ).
[97] Ibid [4]–[9] (Bathurst CJ, Johnson and RA Hulme JJ).
[98] Ibid [64]–[71] (Bathurst CJ, Johnson and RA Hulme JJ).
[99] Ibid [74]–[75] (Bathurst CJ, Johnson and RA Hulme JJ).
[100] Ibid [120]–[122] (Bathurst CJ, Johnson and RA Hulme JJ).
[102] Ibid [4] (Muir JA).
[103] Ibid [1] (Muir JA).
[104] Ibid [5] (Muir JA).
[105] Ibid [12] (Muir JA).
[106] Ibid [23] (Muir JA).
[107] Ibid [34]–[36] (Muir JA).
[108] Ibid [37] (Muir JA).
[109] Ibid [45] (Muir JA).
[110] Ibid [46] (Muir JA).
[111] Shane Witnov, ‘Investigating Facebook: The Ethics of using Social Networking Websites in Legal Investigations’ (2011) 28 Santa Clara Computer and High Technology Law Journal 31.
[112] Ibid.
[113] Paul W Grimm, L Y Bergstrom and M M O’Toole-Loureiro, ‘Authentication of Social Media Evidence’ (2013) 36 American Journal of Trial Advocacy 433.
[114] Ibid.
[115] DUI is the charge of Driving under the Influence of Drugs or Alcohol.
[116] Anthony and Martin, above n 76.
[117] Ibid.
[118] Ibid.
[119] Ibid.
[120] Ibid.
[121] Ibid.
[122] Please refer to Part 3, Section B of this article for information on the two directions the US Courts have taken on the issue of authenticity/admissibility.
[123] Anthony and Martin, above n 76.
[124] Emma Wagstaff and K Tranter, ‘Taking Facebook at face value: The Refugee Review Tribunal’s use of social media evidence’ (2014) 21 The Australian Journal of Administrative Law 172.
[125] Ibid. Wagstaff and Tranter argue that social media evidence being taken on face value is erroneous for a variety of reasons. Some of those reasons are canvassed below in the section addressing critiques of social media evidence. Overall, the authors argue that a prima facie view of the validity or reliability of social media evidence is incorrect because it is a user-generated content platform. This means that there are a variety of psychological and individual factors that will determine what information is included in social media and how accurate this information is.
[126] Ibid.
[127] Ibid. See, eg, 1007231 [2010] RRTA 434 where the RRT questioned the applicant’s claim of being homosexual because his Facebook profile listed him as heterosexual. See also 1107072 [2012] RRTA 428, where the RRT questioned the applicant’s claim of their strong religious views because there was no recent religious Facebook posts on their profile.
[128] Scolaro v Shephard [No 2] [2010] WASC 271.
[129] Ibid. Whether the glass was thrown or smashed into the victim’s face was a disputed fact throughout the case. It is unclear whether the glass was thrown within a very close proximity to the victim’s face, or whether it was forcefully smashed into the victim’s face.
[130] Ibid [2].
[131] Ibid.
[132] See, eg, Glenn Cordingley, ‘Former Model Eva Scolaro gets 12 Months for Glassing Woman’, PerthNow (8 October 2010) <http://www.perthnow.com.au/news/former-model-eva-scolaro-returned-to-jail-while-judge-considers-appeal> .
[133] Scolaro v Shephard [No 2] [2010] WASC 271, [119] (Martin CJ).
[134] Ibid.
[135] Ibid [134].
[136] Ibid [135].
[137] Ibid [135].
[138] Ibid [222].
[139] Wong v the Queen [2001] HCA 64; (2001) 207 CLR 584.
[140] The literature also raises ethical issues surrounding the utilisation of social media evidence that are outside the scope of discussion in this article. For further information see, eg, Shane Witnov, ‘Investigating Facebook: The Ethics of using Social Networking Websites in Legal Investigations’ (2011) 28 Santa Clara Computer and High Technology Law Journal 31–80.
[141] Grimm, above n 113.
[142] Ibid.
[143] Wagstaff and Tranter, above n 124.
[144] Ibid.
[145] Ibid 4.
[146] The State of Ohio v Mays (Adjudication and Disposition) (Court of Common Pleas, Juvenile Division, Jefferson County, Ohio Case No DL-2012-139 17 March 2013).
[147] Ibid.
[148] Wagstaff and Tranter, above n 124.
[149] Ibid.
[150] Ibid.
[151] Ibid.
[152] Ibid. The authors found that persons who were more outgoing were more likely to post a large amount of information on their social media accounts.
[153] Ibid.
[154] Ibid.
[155] Neuroticism refers to levels of emotional instability and the ability to regulate emotions effectively. The higher the levels of neuroticism the less stability and regulation there is. See Raymond J Corsini, The Dictionary of Psychology (Brunner-Routledge, 2002) 624.
[156] Wagstaff and Tranter, above n 124.
[157] Ibid.
[158] Ibid.
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