If anything can be said to have captured the imaginations of cinema-goers in the early 21^st Century, it is the struggle between superheroes and their villainous nemeses. Yet while the various States' Crimes Acts include provisions to cover the sentencing of violent offences, there is some disparity in how they might treat the actions of our beloved cartoon characters.

In recent years, the fictional ‘superhero’ has blurred into reality with self-proclaimed heroes appearing across the globe with varying levels of commitment: from Seattle in the United States, where ‘Phoenix Jones’ patrols the streets, chasing would-be car-thieves; to the streets of Balmain in Sydney, where ‘The Black Rat’ patrols with fire extinguisher and first aid kit.

There is a good reason each of these heroes waits for police assistance, however. While it might look good on the four-colour pages of comic books, in reality, vigilantism is no excuse for violence. When Superman breaks into Lex Luthor’s secret hideout to capture him, it is still assault and battery (not to mention breaking and entering). It is not a mitigating circumstance that the vigilante’s attack was predicated on a belief that the ‘villain’ committed a serious offence.

Thankfully for Superman’s sentencing prospects, there is still provision for a defence of ‘rescue’ in most jurisdictions (even by a stranger, as was confirmed by Davies J in R v Duffy [1967] 1 QB 63; [1966] 2 WLR 229 at 67 (QB)), allowing the caped crusader to (in good faith) use a like degree of force in defence of others.

Of course, where there are superheroes, there are always supervillains trying to kill them. In contrast to the heroes, however, sentencing provisions appear ready to promote acts of particularly ridiculous villainy. Harebrained schemes of shark-mounted laser beams or Rube Goldberg machines of dubious efficacy often fall on the lighter side of sentencing. When being sentenced for attempted murder, a villain might rely on the mitigating circumstance that their techniques were neither effective nor likely to be effective and did not cause lasting physical harm to the hero.

In reality, this is more concerned with offenders suffering from, for example, a major depressive disorder — as in the case of R v Skipper (1992) 64 A Crim R 260 (WACCA). Likewise, courts are likely to rely on a consideration that it is in the nature of villains such as Wile E Coyote to, after failing once again to kill the Road Runner, go out and immediately reoffend.

When we watch our heroes and villains fighting on the big (or little) screen, it is not only disbelief that we suspend, but also application of relevant legal principles. But it is worth remembering that no matter how well-meaning a superhero may be, a clever villain can probably get the last laugh.

Criminal sentencing is examined in the updated The Laws of Australia Subtitle 12.4 “Sentencing for Specific Offences”, while the defence of rescue is examined in Subtitle 9.3 “Defences and Responsibility” at [9.3.1160]–[9.3.1270].