Sentencing by videolink in Australia: Up in the Air.

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Sentencing by videolink: Up in the air?
Emma Rowden, Anne Wallace and Jane Goodman-Delahunty
*
A United Kingdom pilot scheme – where defendants pleading guilty to certain
offences remotely from a police station are sentenced via videolink – has
sparked considerable controversy. Although attracting less attention, sentenc-
ing by videolink also occurs in Australia. The enabling legislation contains few
guidelines for the exercise of judicial discretion and little is known about the
nature and scope of remote – or videolinked – sentencing, or its impact on
the sentencing process and participants. This article presents unique findings
from an Australian empirical study about uses of videoconferencing in the
justice system. Semi-structured interviews were conducted with 56 judicial
officers, court administrators, court staff, justice department officials,
prosecutors, witnesses and lawyers. Responses pertinent to sentencing
reflected both the rationale for implementing remote sentencing as well as
concerns about remote sentencing procedures. Results indicated that the use
of videolinks can alter the nature of sentencing proceedings, but views that
technology necessarily degrades the sentencing process or renders it less
effective are overly simplistic. Attention to the configuration of the technology
and participants, as well as protocols and procedures for videolink use can
potentially preserve the essential functions of sentencing conducted remotely.
Recommendations on ways to address stakeholders’ concerns without
compromising the critical features of sentencing proceedings are proposed.
INTRODUCTION
The recent award-winning American movie Up in the Air
1
stars George Clooney as Ryan Bingham, a
corporate down-sizing expert. He travels the country firing people on behalf of employers who wish to
avoid this confronting and emotionally intense task, which his company euphemistically describes as
“career transition counselling”. In some respects his role in executing the equivalent of capital
punishment in the workplace is similar to that of a circuit judge. He is a stranger to these employees
and has no ongoing relationship with them. The exchange rarely includes haptic communication – no
hugs, no handshakes. To dignify the occasion, Bingham dresses in a suit, delivers the bad news in
person, and offers a few ritual comments to placate fired employees.
While there are obvious limitations to the analogy, there are some parallels with the sentencing
process. Judicial officers, too, are “career transition counsellors” performing an unpleasant duty on
behalf of the community. They also dress for the occasion and make ritualistic comments. Many avoid
eye-contact with the defendant, enter and leave the proceedings quickly, keep communications
unidirectional, and, in higher courts, may read aloud written sentencing remarks that will be
distributed later. Although sentencing is generally conducted in person, the display of emotion is often
controlled. Do these features suggest that sentencing is well suited to be conducted by videolink?
2
*
Emma Rowden: BA (UNSW), BArch (UNSW), PhD Candidate, Faculty of Architecture, Building and Planning (Melb). Anne
Wallace: LLB (Tas), LLM (Melb), Grad Cert (HigherEd) University of Canberra; Assistant Professor, Faculty of Law, University
of Canberra; PhD Candidate, School of Law, University of Sydney. Jane Goodman-Delahunty, BA (Witwatersrand), TTHD
(Witwatersrand), JD (Seattle), PhD (Washington); Professor, Australian Graduate School of Policing and School of Psychology,
Charles Sturt University; Member of the Washington State Bar Association, Member of the Australian Psychological Society,
Fellow of the American Psychological Association, Psychologist Registered in New South Wales. The Gateways to Justice
Project is funded by the Australian Research Council Linkage Grant (Project number: LP0776248).
1
Up in the Air (film directed by Jason Reitman, Paramount Pictures, 2009). The screenplay was adapted from the novel by
Kirn W, Up in the Air: A Novel (Doubleday, New York, 2001).
2
The term “videolink” in this article refers to all forms of audiovisual technology that allow remote participation in court
processes, whether via integrated services digital network (ISDN), satellite or internet with videoconferencing technologies, or
by direct cabling with closed circuit television (CCTV) technologies.
(2010) 34 Crim LJ 363 363

The lack of any apparent need for in-person engagement between those delivering the bad news
and those receiving it is a consideration that persuades Mr Bingham’s employer to adopt a plan by his
young co-worker, Natalie Keener, to fire people remotely, by videolink. The savings in travel costs and
the potential increase in efficiency are undisputed; however, Bingham is adamant that digitally
mediated communication is ill suited to this sensitive task and will fail. Ironically, when Natalie’s
boyfriend breaks up with her by text message – firing her as his girlfriend – she resents the use of cold
and tactless technology in her personal life. Ultimately, in the film, the videolink pilot is abandoned,
and Bingham is vindicated.
Does Bingham’s pessimistic view of the use of videolink apply to the sentencing process? In
Australia and elsewhere, in the decade since publication of the novel on which Up in the Air was
based, access to internet and digital communications technologies has expanded rapidly. By June
2009, there were 8.4 million active internet subscribers in Australia, including 1.4 million private and
public organisations and seven million households.
3
Improving videolinks is a key plank of Australia’s
new national broadband rollout, promising Australians the ability to use real-time high-definition
videoconferencing collaboration to run businesses, access medical services and connect with family
and friends.
4
Many services traditionally conducted in person – such as psychological counselling and
therapy – are now available via a host of asynchronous and synchronous technologies.
5
Courts, too,
have integrated this new technology into various aspects of their practice, including sentencing.
6
Nonetheless, little is known about the nature and scope of remote sentencing, or its impact on the
sentencing process and participants. Few courts keep records about videolink use, and where records
are maintained, they often do not specify the nature of the matter, or distinguish one type of
proceeding from another. Many fundamental questions remain unanswered: Is it inappropriate and
undignified for serious legal proceedings to be conducted by videolink? Does the remote sentencing
process pose insurmountable communication difficulties?
In this article, the authors explore these questions and present original data that provides an
evidence-base to inform future practitioners and policy-makers. First, recent remote sentencing
developments in the United Kingdom are described. Next, the authors review existing Australian
legislation establishing the legal context in which videolinked sentencing can arise. Thirdly, results of
a series of interviews with 56 stakeholders with experience relevant to videolinked sentencing in
Australia are presented. These interviews provided an empirical basis to assess these questions and
outline policy recommendations for future users of this technology in the sentencing context.
The United Kingdom virtual court pilot
In May 2009, United Kingdom Justice Secretary Jack Straw launched a “virtual court” pilot that
allows defendants to plead guilty via videolink to selected magistrates’ courts in London and Kent,
from the police station where they are arrested.
7
The pilot was designed to achieve greater efficiencies
in the criminal justice process, provide speedier disposition of cases and achieve considerable savings
in time and money, and the new United Kingdom government is also investigating its use as part of its
3
Australian Bureau of Statistics, 8153.0-Internet Activity (2009), http://abs.gov.au/ausstats/abs@.nsf/mf/8153.0 viewed 26 June
2010.
4
Department of Broadband, Communications and National Economy, National Broadband Network Policy Brochure (2010),
http://www.dbcde.gov.au/broadband/national_broadband_network/national_broadband_network_policy_brochure viewed
31 May 2010.
5
Abbott J-AM, Klein B and Ciechomski L, “Best Practices in Online Therapy” (2008) 26 J Tech Hum Serv 360.
6
Johnson MT and Wiggins EC, “Videoconferencing in Criminal Proceedings: Legal and Empirical Issues and Directions for
Research” (2006) 28(2) Law & Policy 211. Victorian Parliamentary Law Reform Committee, Technology and the Law, Report
(1999) at [184]; Australian Law Reform Commission, Technology – What it Means for Federal Dispute Resolution, Issues
Paper No 23 (1998) at [5.37].
7
BBC News, London Hosts First Virtual Court (27 May 2009), http://news.bbc.co.uk/2/hi/uk_news/england/london/
8070279.stm viewed 22 August 2009.
Rowden, Wallace and Goodman-Delahunty
(2010) 34 Crim LJ 363364

new austerity measures.
8
The press release promised that “a case can be heard within hours of the
defendant being charged and, if a defendant pleads guilty, could see sentencing handed down on the
same day”.
9
All this can occur without the need to remove defendants from the police station where
they were first taken into custody.
This virtual court is not intended for cases involving children, or multiple defendants. Guidelines
for custody officers suggest that it may be unsuitable for certain other types of defendants, such as
persons with mental health problems.
10
Its focus is “low level crime such as public order offences,
theft and criminal damage”.
11
However, the enabling legislation does not specifically limit its
operation, so it could potentially apply to offences that carry significant financial penalties or sentences
of imprisonment.
12
There has been considerable criticism of the virtual court pilot from lawyers in the United
Kingdom. One major concern was that the configuration of the virtual court effectively requires
lawyers to choose between accompanying their clients or attending the courtroom.
13
Lawyers who opt
to attend court may gain a better understanding of how the magistrate is receiving the client’s case at
the expense of the opportunity for quiet asides with the client to clarify their position. Some lawyers
contended that videolinked sentencing felt “unreal” and that it depersonalised defendants, comparing
the experience to participation in “a remote video game”.
14
This echoes concerns by academic
commentators that communication difficulties arise from limited transmission of body language and
non-verbal cues where participants appear remotely.
15
Lawyers also argued that the gravitas of a court
appearance might not be registered by defendants who appeared from a remote and anonymous room
within a police station, and that there was a diminished sense of dignity when a defendant was
sentenced by videolink.
16
8
The potential savings of taking the scheme nationwide were estimated at £10 million a year: Ministry of Justice (UK), Jack
Straw: New Virtual Courts Launched and Intensive Community Payback Extended, Press Release (12 May 2009),
http://www.justice.gov.uk/news/newsrelease120509a.htm viewed 22 August 2009; Peel M, “Jury Still Out on ‘Virtual Courts’”,
Financial Times (3 November 2010), http://www.ft.com/cms/s/0/fe2d73fe-e6b7-11df-99b3-00144feab49a.html?ftcamp=rss
viewed 3 November 2010.
9
Ministry of Justice (UK), n 8.
10
According to the virtual courts pilot brochure, the custody officer uses a Suitability for the Virtual Court Process Checklist;
Criminal Justice Board (UK), The Virtual Court, promotional DVD (2009); London Criminal Justice Board, A Guide to Virtual
Courts in London (1 December 2008), http://www.frontline.cjsonline.gov.uk/_includes/downloads/guidance/better-use-of-
technology/20081201_A_Guide_to_Virtual_Courts_in_London_DLk_Leaflet_v1.pdf viewed 3 November 2010.
11
Criminal Justice System, Virtual Court, Information for Defence Representatives, http://frontline.cjsonline.gov.uk/guidance/
cjs-reform/efficiency-and-effectiveness/#vc viewed 6 March 2010, Annex A.
12
Crime and Disorder Act 1998 (UK), ss 57A-57E.
13
BBC News, Solicitors Boycott Virtual Courts (31 July 2009), http://news.bbc.co.uk/2/hi/uk_news/8177567.stm viewed
2 February 2009; Peel, n 8.
14
“I think it is an isolating feature – the fact that you are almost taking part in a remote video game. It rather depersonalises the
whole process”: Mr Robin Murray quoted in BBC News, n 13.
15
See Poulin AB, “Criminal Justice and Video Conferencing Technology: The Remote Defendant” (2004) 78 Tul L Rev 1110;
Johnson and Wiggins, n 6; Mulcahy L, “The Unbearable Lightness of Being? Shifts Towards the Virtual Trial” (2008) 35(4)
J Law & Soc 484; Wallace A and Rowden E, Gateways to Justice: The Use of Videoconferencing Technology to Take Evidence
in Australian Courts, Paper presented at 9th European Conference on eGovernment (London, 2009) pp 655-656. The ways in
which participants are framed by the angle of the camera can influence inferences drawn about the defendant: Locke J, “Staging
the Virtual Courtroom: An Argument for Standardising Camera Angles in Canadian Criminal Courts” (2009) Masks: The Online
Journal of Law and Theatre 36; Lassiter GD, Geers AL, Handley IM, Weiland PE and Munhall PJ, “Videotaped Confessions
and Interrogations: A Simple Change in Camera Perspective Alters Verdicts in Simulated Trials” (2002) 87 J App Psychol 867;
Lassiter GD, Geers AL, Munhall PJ, Handley IM and Beers MJ, “Videotaped Confessions: Is Guilt in the Eye of the Camera?”
(2001) 33 Adv Exp Soc Psychol 189; Lassiter GD, Diamond SS, Schmidt HC and Elek JK, “Evaluating Videotaped
Confessions: Expertise Provides No Defence Against the Camera-perspective Effect” (2007) 18 Psychol Sci 224.
16
Smith R, “‘Virtual Court’ Cases Go On Trial in London”, The London Evening Standard (9 May 2009), http://
www.thisislondon.co.uk/news/article-23395607-virtual-court-cases-go-on-trial-in-london.do viewed 2 November 2009.
Sentencing by videolink: Up in the air?
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Defendants who are sentenced from the police station shortly after arrest lack the opportunity to
garner support that is available during the sentencing process in a physical courtroom.
17
They are in
the same position as a defendant in custody, with no opportunity to go home, re-group, and bring a
friend or relative with them, having considered how best to present themselves to the court. The
configuration of the technology also deprives them of a view of any family and friends present in the
courtroom – a view often, although not always, available to a defendant who appears in person.
18
The virtual courts project has been promoted as a major justice initiative and a formal evaluation
of the pilot is under way.
19
However, while initially established as a voluntary program requiring
informed consent from the defendant,
20
its use has since become compulsory
21
for all first hearings in
the pilot areas “within certain parameters and conditions”.
22
Although guidelines indicate instances
where its use may not be appropriate, for example, with vulnerable defendants who require an
interpreter, discretion to use the link in the first instance is now effectively in the hands of the police.
The use of videolinks, particularly for sentencing, has raised concerns amongst British lawyers that
bureaucrats are prioritising cost and convenience over a defendant’s right to due process.
23
This article
explores whether similar concerns are being expressed about videolinked sentencing in Australia.
LEGISLATIVE FRAMEWORK FOR VIDEOLINKED SENTENCING IN AUSTRALIA
In Australia, the capacity to sentence by videolink was introduced as part of broader initiatives to
allow the use of videoconferencing to conduct remand and other hearings with defendants in
correctional facilities. While not always explicit, the power to sentence by videolink nevertheless
exists. It can be exercised by judicial officers in a variety of situations, as evident from a comparative
analysis of the legislation.
Enabling legislation for sentencing by videolink in Australia
There is considerable variation in the legislation that enables the use of videolink for sentencing, but
there are also many commonalities, as Table 1 below illustrates. In a number of jurisdictions, the
power to use videolink to sentence is most explicitly defined in the case of defendants who are in
custody – either on remand or serving a custodial sentence. This may reflect the fact that the capacity
to use videolinks to enable court appearances by defendants in custody was a major focus of recent
technology roll-outs in those jurisdictions.
17
BBC News, n 13.
18
At the beginning of the United Kingdom virtual court pilot proceedings, as shown in its promotional DVD, the defendant is
provided with a quick view of the public gallery in the courtroom, but during the proceedings, the cameras and screens are set
up in a way that denies them the opportunity to make eye-contact with, or even see, those in the public spaces of the courtroom.
See Criminal Justice Board (UK) DVD, n 10.
19
Baksi C, “‘Chaos’ Predicted Over Virtual Court Pilot”, The Law Gazette (16 December 2009), http://www.lawgazette.co.uk/
news/chaos-predicted-over-virtual-court-pilot viewed 16 December 2009; Criminal Justice System, Virtual Court: Frequently
Asked Questions (Version 5), http://frontline.cjsonline.gov.uk/_includes/downloads/guidance/better-use-of-technology/
20081107_Virtual_Courts_FAQ_V5.pdf viewed 3 November 2010. Home Office, Virtual Court Evaluation, Expression of
Interest Document (2 April 2009), http://rds.homeoffice.gov.uk/rds/pdfs09/eoi-virt-court.pdf viewed 3 November 2010. The
United Kingdom Government has already signalled its intention to expand the scheme to other aspects of the criminal justice
process, for example, enabling police to make “virtual” applications for warrants; see BBC News, n 13; Criminal Justice Board
UK DVD, n 10.
20
In the first stages of the pilot, using the “virtual” system was voluntary. The person in custody was given the option by the
police, and handed a brochure, which explained the pilot. If he or she intended to plead not guilty, and there were no other
factors (such as any disabilities etc), the defendant was eligible. The defendant signed a form agreeing that his or her case would
proceed in the virtual court. See Criminal Justice Board UK DVD, n 18.
21
Crime and Disorder Act 1998 (UK), s 57 amended by the Coroners and Justice Act 2009 (UK), s 106(5); Baksi C, “Solicitors
Raise Confidentiality Concerns in Virtual Court Pilot”, The Law Gazette (24 September 2009), http://www.lawgazette.co.uk/
news/solicitors-raise-confidentiality-concerns-virtual-court-pilot viewed 24 September 2009. On 16 December 2009, the pilot
became compulsory in all pilot areas: Baksi, n 19.
22
Tim Godwin (Chair, London Criminal Justice Board) in the Criminal Justice Board DVD, n 18.
23
BBC News, n 13; Baksi (Dec), n 19; Peel, n 8.
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Some jurisdictions have specific powers that permit sentencing by videolink for all defendants;
however, in others, courts considering this option must rely on more general provisions that enable the
use of videolink in certain circumstances, also illustrated in Table 1.
Specific powers to sentence by videolink
Courts in New South Wales and Victoria have specific powers to sentence defendants
24
in custody via
videolink. While the New South Wales legislation creates a presumption in favour of sentencing via
videolink for defendants in custody,
25
Victorian defendants will normally be expected to appear in
person for sentencing.
26
In both States, these presumptive positions can be reversed by direction of the
court.
27
Like New South Wales, the South Australian legislation creates a presumption for dealing
with certain types of matters involving defendants in custody by videolink,
28
but the status of
sentencing hearings within this regime is uncertain.
29
Western Australia has taken a midway approach:
although all accused persons – whether in custody or not – are generally required to be present for
sentencing; “presence” includes appearance by videolink,
30
and videolink may be used for
sentencing.
31
All Queensland courts and the Tasmanian Magistrates’ Court can sentence any defendant –
whether in custody or not – by videolink, although there is no presumption either in favour or against
its use.
32
Northern Territory courts and the Tasmanian Supreme Court
33
have no specific power to
sentence by videolink.
The Queensland power can only be exercised by the consent of the parties;
34
there is no
independent discretion vested in the court. Victorian courts also generally require the consent of all
parties to order a videolink in a sentencing hearing, with the court only able to exercise an
independent discretion where it finds that “exceptional circumstances” exist.
35
Both the Western
Australian discretion to order a videolink and New South Wales discretion to depart from the use of
videolink can be exercised either of the court’s own volition, or on application by a party to the
proceeding.
36
Little legislative guidance is provided for courts exercising these discretions, other than criteria
such as “in the interests of justice”, “the reasonable availability and practicability” of videolink use,
and any “factors that are relevant in the circumstances of the case” or “specified in the rules of court.”
24
“Defendants” in this discussion refers only to adult defendants. Some States also have specific legislation dealing with
videolink for child defendants. See Evidence Act 1958 (Vic), ss 42O-42P; Juvenile Justice Act 1992 (Qld), s 159.
25
Evidence (Audio and Audio Visual Links) Act 1998 (NSW), ss 3A. See also ss 3 and 5BB for the definition of “physical
appearance proceedings”.
26
Evidence (Miscellaneous Provisions) Act 1958 (Vic), s 42K(2).
27
Evidence (Miscellaneous Provisions) Act 1958 (Vic), s 42K(M)(1); Evidence (Audio and Audio Visual Links) Act 1998
(NSW), s 5BB.
28
Evidence Act 1929 (SA), s 591Q(5)(b)(c)(d).
29
In South Australia, where defendants are generally expected to appear in person, they may elect to appear by videolink if the
court consents: Evidence Act 1929 (SA), s 591Q(5)(a)(i)-(iii). Sentencing hearings are not specifically identified as among the
type of matters for which a personal appearance is required; however, it is possible that they could fall within the broad
provision in s 591Q(5)(c) requiring a personal appearance where “the court is of the opinion that there are good reasons in the
circumstances of the particular case for requiring the defendant’s personal attendance and directs accordingly”.
30
Criminal Procedure Act 2004 (WA), s 88.
31
Sentencing Act 1995 (WA), s 14A(1).
32
Penalties and Sentences Act 1992 (Qld), s 15A; Justice Rules 2003 (Tas), r 68.
33
Supreme Court of Tasmania, Videoconferencing Guidelines, http://www.supremecourt.tas.gov.au/about_us/courtroom_
technology/video_conferencing_guidelines viewed 12 March 2010. The use of audio-visual links for other proceedings, such as
remands, appears to rest within the court’s inherent powers.
34
Penalties and Sentences Act 1992 (Qld), s 15A.
35
Evidence Act 1958 (Vic), s 42E(1).
36
Sentencing Act 1995 (WA), s 14A(1); Evidence (Audio and Audio Visual Links) Act 1998 (NSW), s 5BB(3).
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Case authority suggests that relevant considerations can include the fact that an accused is
unrepresented, that the hearing may involved a volume of documentary material, or that the defendant
will be required to give evidence and be cross-examined.
37
In South Australia, the parties must be
provided with an opportunity to object to the use of videolink,
38
and both Victorian and South
Australian courts are specifically directed to take account of any views expressed by the victim of the
offence.
39
General powers to sentence by videolink
Again, there is considerable variation between the more general powers that may enable the use of
videolink for sentencing. To sentence a defendant who is not in custody, courts in New South Wales,
Victoria, Queensland, South Australia and Tasmania could rely on provisions that allow the use of
videolink to take evidence and make submissions, for example, to enable remote submissions by a
legal representative or a self-represented accused. These powers are generally exercisable either on the
court’s own initiative or on application by a party.
40
However, there is one authority that these types of
provisions are facilitative only; they do not permit the use of videolink for a specific purpose unless a
court has already been granted a specific statutory power.
41
Similar powers in Queensland and the Northern Territory that specifically allow remote
“appearances” appear sufficient to enable remote participation by an accused for the purposes of
sentencing,
42
particularly as the Northern Territory legislation provides that the requirement that a
person be present is satisfied by videolink attendance.
43
Although the point has not been decided, one
judicial opinion has questioned the use of such a provision to allow a magistrate sitting in a court to
sentence an offender videolinked from another location.
44
In New South Wales, factors relevant to the exercise of the discretion to order a videolink include
the availability of the videolink, convenience, fairness, and the person’s willingness to participate by
that method. Where its use is opposed, the court must also decide whether the videolink is in the
interests of the administration of justice.
45
Fairness and convenience are relevant considerations in the
Northern Territory,
46
and the link must also meet certain technical standards.
47
In Victoria, the court
must consider whether the proposed videolink meets any prescribed technical standards, and can also
impose additional technical requirements of its own.
48
In Queensland, the making of such an order is
37
R v Potter [2006] NSWSC 1174 at [11]-[13].
38
Evidence Act 1929 (SA), s 591Q(6).
39
Evidence (Miscellaneous Provisions) Act 1958 (Vic), s 42K(M)(8); Evidence Act 1929 (SA), s 591Q(7)-(8). In South
Australia, the prosecution must object to the use of videolink when requested to do so by the victim or the victim’s family,
although it appears that this obligation is confined to those situations where there is no general rule that the defendant must
appear in person.
40
Evidence (Audio and Audio Visual Links) Act 1998 (NSW), s 5B(1); Evidence Act 1958 (Vic), s 42E; Evidence Act 1929 (SA),
s 591Q(1); Evidence (Audio and Audio Visual Links) Act 1999 (Tas), s 6(1).
41
Kerrison v Buxton (2000) 9 Tas R 276 at [20] (Slicer J); 116 A Crim R 463.
42
Evidence Act 1977 (Qld), s 39R; Evidence Act 1939 (NT), s 49E(5).
43
Evidence Act 1939 (NT), s 49E(5).
44
Tolson v Burgoyne [2003] NTSC 46 at [12] (Martin CJ). However, according to interview data collected in the course of this
research, videolink is used on occasion to link a judicial officer to a courtroom where the defendant and his or her lawyer are
physically located, for the purpose of handing down a sentence.
45
Evidence (Audio and Audio Visual Links) Act 1998 (NSW), s 5B(2)-(3).
46
Evidence Act 1939 (NT), s 49E(1)-(3).
47
Evidence Act 1939 (NT), ss 49F-49H: The videolink must be configured in such a way so that all “appropriate” persons at
either end of the link can see and hear each other.
48
All “appropriate persons” at either end of the videolink must be able to see and hear each other. The videolink must also
comply with any requirements perceived by rules of court in relation to the form of the link, the equipment, or class of
equipment used to establish it, the layout of the cameras, the standard or speed of transmission, the quality of the
communication, any other matter relating to the link, and any requirements of the presiding judge or magistrate: Evidence Act
1958 (Vic), s 42G.
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subject to any rules of court; however, rules relating to the use of the technology in criminal
proceedings do not appear to have imposed any limitations on this power.
49
Comparative analysis of Australian legislation on sentencing by videolink
A key determinant differentiating Australian State and Territory legislative provisions is the custodial
status of the accused. Table 1 compares the current legislation.
TABLE 1 Legislative differences between the States and Territories in Australia
SENTENCING BY VIDEOLINK: ACCUSED IN CUSTODY
Legislation
New South Wales Evidence (Audio and Audio Visual Links) Act 1998 (NSW), s 3
Victoria Evidence (Miscellaneous Provisions) Act 1958 (Vic), ss 42K(2)M, 42O-P; Evidence Act 1958
(Vic)
Queensland Penalties and Sentences Act 1992 (Qld), s 15A; Juvenile Justice Act 1992 (Qld), s 159
Western Australia Criminal Procedure Act 2004 (WA), ss 88, 141; Sentencing Act 1995 (WA), s 14A
South Australia Evidence Act 1929 (SA), s 591Q(3)-(7)
Northern Territory Sentencing Act (NT), s 117; Evidence Act 1939 (NT), s 49E
Tasmania Justice Rules 2003 (Tas), r 68 (magistrates court); Evidence (Audio and Audio Visual Links)
Act 1999 (Tas), s 6(1)
Default position
New South Wales Audiovisual link
Victoria In person
Queensland None
Western Australia In person
South Australia Audiovisual link?
Northern Territory In person
Tasmania None
Power exercised
New South Wales To order appearance in person (on application of party/court’s initiative)
Victoria Adults: On application of party or, in exceptional circumstances, court’s initiative
Children: By consent
Exceptional circumstances: On court’s initiative
Queensland By consent (and children must be legally represented)
Western Australia On application of party/court’s initiative
49
Criminal Practice Rules 1999 (Qld), s 53.
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TABLE 1 continued
South Australia Not specified
Northern Territory On application of party/court’s initiative
Tasmania Not specified
Test
New South Wales In the interests of the administration of justice; reasonable availability of facilities
Victoria Consistent with interests of justice; reasonably practical
Queensland Not specified
Western Australia Interests of justice; reasonable availability of facilities
South Australia Facilities must be available
Northern Territory Availability of necessary facilities; convenience; fairness; appropriate persons must be able to
see and hear
Tasmania Reasonable availability; convenience; fairness
Relevant factors
New South Wales Circumstances of the case; specified in rules of court
Victoria Children: Effect on child’s ability to comprehend proceeding and communicate with (and give
instructions or express wishes to) legal representative
SENTENCING BY VIDEO OR AUDIOVISUAL LINK: ACCUSED NOT IN CUSTODY
New South Wales Evidence (Audio and Audio Visual Links) Act 1998 (NSW), s 5B
Victoria Evidence Act 1958 (Vic), s 42E
Queensland Penalties and Sentences Act 1992 (Qld), s 15A; Juvenile Justice Act 1992 (Qld), s 159
Western Australia Criminal Procedure Act 2004 (WA), ss 88, 141; Sentencing Act 1995 (WA), s 14A
South Australia Evidence Act 1929 (SA), s 591Q(1).
Northern Territory Sentencing Act (NT), s 117; Evidence Act 1939 (NT), s 49E.
Tasmania Justice Rules 2003 (Tas), r 68 (magistrates court); Evidence (Audio and Audio Visual Links)
Act 1999 (Tas), s 6(1)
Applies to
New South Wales Taking evidence; making submissions
Victoria Taking evidence; making submissions
Queensland Sentencing
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TABLE 1 continued
Western Australia Sentencing
South Australia Taking evidence; making submissions
Northern Territory Appearance; taking evidence; making submissions
Tasmania Taking evidence; making submissions
Discretion exercised
New South Wales On application of a party or of court’s own volition.
Victoria Not specified
Queensland By consent (children must be legally represented)
Western Australia On application of party/court’s initiative
South Australia Not specified
Northern Territory On application of party/court’s initiative
Tasmania Not specified
Test
New South Wales Availability; fairness; convenience; person will participate; interests of the administration of
justice (where link opposed)
Victoria Compliance with technical standards
Queensland Compliance with court rules
Western Australia Interests of justice; reasonable availability of facilities
South Australia Facilities must be available
Northern Territory Availability of necessary facilities; convenience; fairness; compliance with technical standard
Tasmania Reasonable availability of facilities; convenience; fairness
In sum, as illustrated above, the lack of uniformity in the legislation is striking, and the feature
common to all these provisions is the considerable amount of discretion vested in the courts. Little is
known about how broad criteria such as “convenience”, “fairness”, and “the interests of justice” are
applied in practice in relation to videolinked sentencing. Little is also known about the nature and
scope of remote sentencing in Australia and its impact on the sentencing process and participants. In
the next section, unique findings from an Australian empirical study about uses of videoconferencing
in the justice system are presented, and a number of themes that emerged pertinent to sentencing by
videolink are analysed.
SENTENCING BY VIDEOLINK: AN EMPIRICAL STUDY
Views about sentencing by videolink in Australia were elicited during interviews conducted in the
course of a larger project. This project –Gateways to Justice – aims to improve understanding of
environmental and behavioural factors involved in the use of videolinks to allow remote participation
in court processes generally.
Method and approach
Stakeholders, primarily from the two States whose justice departments were industry partners in The
Gateways to Justice project (Victoria and Western Australia), were invited to participate in interviews
Sentencing by videolink: Up in the air?
(2010) 34 Crim LJ 363 371

about videoconferencing. The interview sample was selected to canvass a wide spectrum of views on
the use of videolinks in court processes, including use for sentencing. Additional participants were
identified by means of a snowball sampling process. Participants were selected for their exposure to,
understanding of, and experience with, remote court participation in their day-to-day work –
qualifying them as “expert interviewees”.
50
Interviews were conducted with 56 stakeholders, including judicial officers (34%), expert
witnesses (23%), remote room support officers (14%),
51
court technology experts (11%), lawyers
(7%),
52
architects who specialise in courthouse design (5%), court administrators (4%) and judges’
associates (2%).
53
Interviews lasted 30-90 minutes, and were conducted at a location nominated by the
interviewee.
54
The interviews were semi-structured to ensure similar coverage; however, they were
often quite “dialogic”
55
as interviewees initiated topic changes and both the researchers’ and
interviewees’ positions were adjusted through an “interactive negotiation”
56
to identify the issues.
Interviews were conducted by the first two authors between October 2008 and February 2010.
57
The
interviews were recorded by portable digital audio recorder, anonymised, and transcribed for analysis.
All interviews were coded for content and common themes. Interview responses pertinent to
sentencing are reported below. For this exercise, responses were scanned to elicit data about the way
videolinks were being used in the sentencing process, and general attitudes of stakeholders towards its
use. They were then analysed in more detail to encode specific advantages and disadvantages that
interviewees associated with videolink use. The following discussion attempts to present the full range
of stakeholder views, allowing for contradictory voices, opinions and experiences.
RESULTS OF THE STAKEHOLDER INTERVIEWS
Results of the stakeholder interviews are presented in three sections. First, findings about the nature
and scope of videolinked sentencing in Australia are presented, with illustrative examples. Next,
50
Meuser M and Nagel U “Expert Inneninterviews: vielfach, erprobt, wenig, bedacht. Ein Beitrag zur qualitativen
Methodendisckussion” in Garz D and Kraimer K (eds), Qualitativ-empirische Sozialforschung. Opladen: Westdeutscher Verlag
(1991) pp 441-468 as discussed in Flick U, An Introduction to Qualitative Research (SAGE, London, 2002) pp 89-90. As
interviewees were self-selected, they may generally have held strong opinions about videolinks, and perhaps saw this invitation
as a good opportunity to register those opinions in a formal setting. A further potential limitation of interview data is their
reliance on an interviewee’s memory and conscious awareness of influences. See Goodman-Delahunty J and Sporer SL,
“Unconscious Influences in Sentencing Decisions: A Research Review of Psychological Sources of Disparity” (2010) 42(1)
Aust J Forensic Sci 19. Regardless, interviews provided a useful means of ascertaining how individuals feel about, perceive, or
react to “a particular environment or situation”: Zeisel J, Inquiry by Design: Environment/behavior/neuroscience in Architecture,
Interiors, Landscape, and Planning (New York, WW Norton & Company, 2006) p 227. Collections of interviews remain a
particularly rich form of qualitative data in terms of their ability as a set to contain a wide variety of often-conflicting views
from multiple perspectives.
51
This group included support personnel who sit in with an adult witness, or defendant (37.5%); or a child witness (63.5%),
hereafter referred to collectively as “remote room support officers”.
52
Many judicial officers discussed their experiences using videolinks while they were practising lawyers or prosecutors.
53
The interviewee sample consisted of 59% males, 41% females; with representation of Australian States and Territories as
follows: New South Wales (9%); Victoria (41%); Western Australia (38%); Northern Territory (2%); and (10%) were members
of the Australian Federal Police.
54
The majority (91%) were conducted in person, with 9% conducted by telephone or Skype.
55
“Interviews conducted in an interactive, dialogic manner that requires self-disclosure on the part of the researcher encourage
reciprocity”: Lather PA, Getting Smart: Feminist Research and Pedagogy with/in the Postmodern (Routledge, New York, 1991)
p 60.
56
Russell GM and Kelly NH, Research as Interacting Dialogic Processes: Implications for Reflexivity (Forum Qualitative
Sozialforschung/Forum: Qualitative Social Research, 2002), http://www.qualitative-research.net/index.php/fqs/article/view/831/
1807 viewed 23 March 2010.
57
The authors are members of a multidisciplinary research team investigating the use of videoconferencing in Australian courts.
Interviews were conducted by Anne Wallace and Emma Rowden. Quotes and references to interviewees were anonymised in
compliance with Human Research Ethics Committee requirements.
Rowden, Wallace and Goodman-Delahunty
(2010) 34 Crim LJ 363372

comments in support of videolinked sentencing and its perceived benefits are classified and reported.
Finally, a series of concerns representative of opposition to sentencing by videolink are documented.
The nature and scope of uses of videolink technology in sentencing
Overall, the interview responses revealed that videoconferencing was used to sentence defendants in a
variety of different ways. For example, when a defendant in custody was sentenced by videolink, most
typically the defendant was the “remote participant” linked to a physical courtroom. However, some
judicial officers made use of the technology to appear remotely and hand down a sentence to a
defendant who was physically present in a courtroom at another location.
On occasion, videolink was used to join a defendant’s legal representative to the sentencing
hearing. For example, a three-way link could connect a defendant in prison to the court, as well as link
in the defendant’s lawyer from his or her office.
58
In one jurisdiction, drug and alcohol, psychiatric
and probation assessments relevant to the sentencing process were frequently conducted by videolink
to prison and other facilities.
59
Reported cases also indicated instances where videolink was used at
sentencing hearings to admit expert evidence, such as testimony from a psychiatrist or psychologist.
60
At times, videoconferencing technology was applied to provide greater public access to the sentencing
process, for example, by linking a sentencing hearing in a metropolitan court to a court in another
location where the victim or family members were situated.
Magistrates, rather than judges, were much more likely to sentence by videolink. According to our
sample, sentencing by videolink occurred more frequently in the case of summary offences (driving
and other motor vehicle offences, less serious assaults, minor thefts) rather than in more serious, or
indictable, offences. However, some judicial officers sentenced via videolink for more serious offences
where a defendant, usually in custody, requested it, or where it was necessary to protect the defendant.
Nonetheless, some judicial officers were reluctant to sentence for serious matters by videolink under
any circumstances, because of the severity of the punishment imposed, as reflected in the following
comment:
I think it’s more appropriate if you’re sentencing on a serious matter, and someone’s going to get a
period of imprisonment, that they appear in court in person (Judicial Officer, WA).
However, another judicial officer indicated that while they respected some colleagues’ preference
to “look the accused in the eyes” when sentencing, “where it’s convenient to do it otherwise, I say I
don’t hesitate to jump in and do it otherwise” (Judicial Officer, WA).
Interviewees generally perceived videolinks as a useful mechanism to improve efficiency in court
proceedings – particularly where distance was an issue. In Western Australia, interviewees made the
point that the vast distances and very remote regions covered by the courts were major factors driving
its use. The Chief Justice of Western Australia has publicly acknowledged that videolinks have
become an indispensible part of the way the justice system operates in that State, including its use for
sentencing.
61
A Northern Territory prosecutor interviewed confirmed a similar position in that
jurisdiction. In Victoria, although distances are not as great, the desire to avoid additional travel was
also a consideration.
While distance and travel were reported as important factors in support of the use of videolinked
sentencing, the view that a sentencing proceeding was, to some extent, a more procedural or formal
type of matter in which in-person appearances were not strictly necessary, appeared to correlate most
strongly with examples given of videolinked sentences for summary offences.
58
This was generally for the convenience of the lawyer and to save travel time and costs. Statistics provided by one prison in
Victoria for a 12-month period indicated that one-third of the time, prison videolink facilities were used to connect to legal
offices.
59
Statistics provided by one prison in Victoria for a 12-month period indicated that such links occurred on an average of nearly
three times per month.
60
See, eg R v Burke [2000] NSWSC 356 at [10]; Director General NSW Department of Agriculture v Temmingh [2003]
NSWSC 247 at [28].
61
Second author’s notes, presentation by Chief Justice Wayne Martin, Sentencing By Video Link: The Western Australian
Experience, Judicial College of Australia and ANU Sentencing Conference (Canberra, 6-7 February 2010).
Sentencing by videolink: Up in the air?
(2010) 34 Crim LJ 363 373

However, other judicial officers emphasised the need to engage with the defendant and the
broader public during the sentencing process:
[I]f you want someone to leave the Court with a sense of why they got the sentence they got, what’s
expected of them and to understand it, you need to have communicated, not just spoken at someone. …
So it’s an engagement. It’s an exchange of views and ideas and information ultimately of course with
the Judge passing the sentence with everyone understanding that that’s what it’s about. (Judicial Officer,
WA).
So, while the impetus to use videolink to sentence may stem from the desire to save time and
achieve efficiency, for many judicial officers the sentencing procedure was more than a perfunctory
formality or administrative necessity. Both the duration of the prison sentence imposed and the type of
defendant were considerations that influenced the perceived appropriateness of sentencing via
videolink. In the following sections, the benefits of videolinked sentencing identified by the
stakeholders are summarised, as are reservations expressed about this innovation in court procedure.
Considerations in support of sentencing by videolink
Unlike in the United Kingdom, sentencing by videolink has not been the subject of a specific
government initiative in Australia. Nonetheless, the authors’ findings reflected support for its use, on
various grounds. Stakeholders identified several benefits of videolinked sentencing for the court and
court personnel, for defendants, and for members of the general public.
Increased efficiency for courts and court personnel
Clear consensus emerged across the interviews that sentencing by videolink was primarily regarded as
a way to conserve court resources (generally judicial time) and to minimise the burden and risks of
travel. Most commonly, this rationale was applied where a prisoner, already in custody, was facing
sentence for another offence that was unlikely to result in a change of his or her custodial status. In
those circumstances, sentencing by videolink to the prison was viewed as a more efficient,
cost-effective and less time-consuming operation than in-person proceedings.
Savings in travel and time were also a consideration for judicial officers. For example, magistrates
who had heard a case on circuit and reserved their decision fairly routinely used a videolink to the
court where the case had been heard to hand down their decision from their metropolitan base court,
rather than travel back to the country location. In these situations, the magistrates were linked to the
courtroom in which the other court participants (defendant, his/her lawyer, prosecution, victim,
supporting family members, etc) were physically assembled.
Minimising negative disruption to prisoners
Sentencing of offenders via a videolink connection to prisons was routinely justified by reference to
the alleged reluctance of prisoners to attend court in person because of disadvantages incurred as a
result of disruption to their prison routine, including loss of privileges. Eliminating waiting time in
holding cells was cited as a benefit to defendants by reducing tension and boredom.
62
When the
release of a defendant was the outcome of the sentencing order, arrangements to release the defendant
from prison were expedited following a videolinked sentencing to a prison.
Improved public access to sentencing proceedings
The use of videolinks to enable members of the affected community or the public to view a sentencing
hearing was cited as a means to improve public access to the courts. One interviewee described the
effect of using a videolink for a victim’s family as follows:
[I]t is really valuable for people or rural clients who are often disenfranchised in that … often sentences
are brought back to Melbourne … the family have been very grateful to have had that opportunity
because the family resided four hours away from where the sentence was being held, that they felt very
much part of the process. It was something, it was a really positive experience for them (Remote Room
Support Officer, VIC).
62
This view was expressed by nine judicial officers, two court administrators and one remote room court officer.
Rowden, Wallace and Goodman-Delahunty
(2010) 34 Crim LJ 363374

Minimising community conflict and increased public safety
The potential to use remote sentencing to minimise the risk of conflict between different community
groups with an interest in the sentencing outcome was also cited as a benefit of this process. One
judicial officer, referred to a colleague’s case that involved significant tensions between regional
Aboriginal populations:
And when he came to sentence, he did that in Perth, I understand … [there were] videolinks
simultaneously to both Broome and Derby … so that the two camps could again see what the outcome
was … without coming into a situation of conflict (Judicial Officer, WA).
Using videoconference was also perceived as a way of reducing security and other risks
associated with inmate movement to and from correction facilities.
63
Considerations in opposition to sentencing by videolink
Two primary themes emerged in the responses of stakeholders in opposition to sentencing by
videolink. First, several interviewees mentioned practical difficulties with the quality and configuration
of the technology. Secondly, fundamental doubts were expressed about the efficacy of communication
technologies to accomplish particular aspects of sentencing procedure.
Technology: Quality, availability and training
The poor quality and unpredictable availability of the technology emerged as a key concern among
stakeholders. One judicial officer commented:
I think the quality is very poor, very disparate – so there’s no consistency there and the technology
varies from one place to another (Judicial Officer, WA).
Even in States where distances and the strain on public resources were less pressing concerns, the
demand for videolinks outstripped their availability.
64
The overwhelming message was “we need more
facilities”, both in terms of codecs
65
and videolink suites.
Judges’ associates or other judicial support staff often have to set up the videolink connection
and/or oversee videolinks. The adequacy of training for these court staff and the impact of these
additional duties on their workload were raised by stakeholders as practical issues in implementing
this technology. Court technology managers viewed a high turnover among judicial support staff as a
factor that exacerbated this problem. A lack of skills and confidence may explain complaints from
interviewees about the reluctance of court staff to be proactive in using the technology, for example, to
alter a set-up to correct minor technical problems. One interviewee commented:
[I]t’s a little bit frustrating that the operators tend to think, as long as I’ve got the call up and everyone
can hear each other, it’s all good and … there’s so much functionality that’s not used (Court
Technology Officer, VIC).
Another echoed these views, stating:
Court staff don’t know that they really are there with the controls (Judicial Officer, WA).
Some judicial officers identified their own need for training. One suggested that while familiarity
with the technology was important, and generally achieved on the job, it might be useful for judicial
officers to receive some training as to the operation and potential capacity of the technology in
facilitating alternative arrangements for particular cases. Other judicial officers felt more able to take
charge of the technology and, with the support from court staff, arrange configurations to improve
interactions between participants. One judicial officer described doing this in a videolinked hearing
involving a child:
You’d start a conversation, you’d say … “Right, now you can see me, I’m the Magistrate, my name’s
63
This view was expressed by two judicial officers and two court administrators.
64
This view was expressed by a court administrator, a remote room support officer and an expert witness.
65
“Codec” stands for coder-decoder, and refers to technological equipment that enables both audio and visual information, or
data, to be transferred from one location to another. The codec enables input from a camera and microphone at one location to
be sent to a screen and speaker in another location.
Sentencing by videolink: Up in the air?
(2010) 34 Crim LJ 363 375

.......... ” etcetera. And then you’d say “Now, I’m just going to get the video to pan around the
courtroom, we’re going to stop at people and you’ll be able to see who’s here and you’ll be able to see
your mum up the back and we’ll just stop on her and she can wave to you or whatever else. And you
can see that your mum’s here in court”. And if she couldn’t be seen on the video, you’d move her
forward and … get the mother sitting behind the lawyer, too, so that while you pan onto the mother, and
the mother can be seen, or mother and father, uncle, aunty, granny or whatever. Get them to sit behind
the lawyer so it has the lawyers on the screen too (Judicial Officer, WA).
Potential for errors of identity
A few interviewees raised the potential for mistaken identity to occur when defendants were dealt with
via a prison videolink. One judicial officer commented:
For instance when we go to a prison to do a link up I might have four people at one prison … You’ve
got to make sure you’ve got the right person and you’ve got to be really careful because you know
people will answer to any name sometimes, particularly Aboriginal people … You’ll sit there and go
“Oh you know is your name Jack Smith”. They’ll go “Oh yeah” … later … you realise you were talking
to the wrong person (Judicial Officer, WA).
Loss of impact and/or understanding
Some interviewees thought that a sentence had less impact on defendants when administered remotely.
Others expressed concern that a loss of non-verbal cues on a videolink could diminish opportunities to
clarify a defendant’s understanding of the sentence, particularly in the case of accused who might
already be disadvantaged in that respect. One judicial officer explained:
It’s a real concern in my view to sentence over a video because you’ve obviously just got someone on
the other end who’s going to be nodding and appear to be compliant and understanding … But it’s very
difficult to ensure that the person has understood what’s going on and you haven’t got the person there
to at least feel some vibe … It’s difficult enough when you’re dealing with people who come from an
Aboriginal background to ensure that they are understanding when you’re in court … let alone if they
are somewhere else (Judicial Officer, WA).
Effect on lawyers’ access to clients
For defendants who are sentenced by videolink from a correctional facility, the opportunity to
communicate with their lawyers, before or after the sentencing process, can be very important, both to
provide instructions and to clarify the nature of the sentence and its implications. Most, but not all,
enabling legislation provides that a court must supply facilities to ensure that there is a capacity for
confidential communications between lawyer and client.
66
The study’s findings revealed that where defendants are sentenced via videolink from prison, their
lawyers are often at the court or another location, such as a videoconferencing facility in their offices.
Prison rules applicable to initiation of telephone contact generally entail a delay in a defendant’s
access to his or her lawyer after sentence is handed down. Most typically, the prisoner must phone the
lawyer’s office to arrange a call from the lawyer to the client at another time when they can use an
interview room to have that conversation in private. As a consequence, in one correctional facility, the
non-legally trained prison officer, assigned to sit in the remote videolink room with the defendant, was
frequently the first to explain to the defendant what had transpired in court and what it meant:
One of us sits in there for all … the criminal matters – because it affects their status … We take notes
… Remand dates, stuff like that we, we record for our own benefit. Because prisoners do ask – they
don’t always pay much attention to what’s going on in their matter. So we always make sure that we
have a remand date or an adjournment date, that we can say “It’s going out to this date. Do you want
me to write it down?” or “This happened .......... ” or a lot of them might not understand the legalese
(Remote Room Support Officer, VIC).
This is an onerous responsibility for a prison employee who is not necessarily prepared or trained for
such an important task.
66
Evidence (Audio and Audio Visual Links) Act 1998 (NSW), s 5BC; Evidence (Miscellaneous Provisions) Act 1958 (Vic),
s 42S; Evidence Act 1929 (SA), s 59IR.
Rowden, Wallace and Goodman-Delahunty
(2010) 34 Crim LJ 363376

Increased severity of the sentence
The contention that sentencing by videolink might result in a harsher penalty for the defendant
emerged in a joint interview with two lawyers who stated:
It’s easier for a magistrate to switch off if they can’t see you in person … When someone’s in front of
you, and they’re a real person, it’s a lot harder to send them to gaol, I think (Lawyer, WA).
Capacity to involve others
Some stakeholders had concerns about the impact of the technology on a judicial officer’s ability to
engage with others – the families of the victim or defendant and the broader community – in the
sentencing process. Current configurations of videolink facilities do not allow interactions beyond
conversations between the judge, those at the bar table and those in the remote space. Thus, when the
judge or magistrate is the one appearing remotely, they then cannot readily converse with other
persons in the courtroom. As one judicial officer explained:
[Y]ou want not just that individual that you’re sentencing but family members present, or carers … en
masse on a screen as well … Very important in sentencing children is knowing the family –immediate,
extended and just carers … it’s very important to get that sense of support – whether it exists or not, and
who actually makes up that group (Judicial Officer, WA).
Another judicial officer was concerned about the capacity to achieve a broader involvement with
the community as such engagement pertained to the role of the judge as dispensing justice in the
context of commonly held values. They commented that sentencing was really about:
saying to people there are limits, there are community limits … there are bounds beyond which you
really should not go … and you can say that to a person in a small room who’s looking into a video
screen and have potentially some impact I suppose. But if you’ve got somebody sitting in the court
surrounded by other people where you’re saying that, then it does appear to be more of a reflection of
what people in a community think about something (Judicial Officer, WA).
Less inhibited behaviour in the remote environment
The potential for remote participants, including defendants, to be less inhibited in their behaviour was
mentioned frequently by stakeholders.
67
Several interviewees noted that defendants on videolink were
more likely to behave inappropriately than those in court. One lawyer reported an instance where the
sight of the magistrate on the TV screen evoked laughter from the defendant, and described other
experiences of remote participants “joking around” and appearing to not “be taking it seriously”, or
giving inappropriate responses:
There’s a bit of a tendency to say “see you later” like you’re hanging up on a phone call″(Lawyer,
WA).
This tendency was ascribed by some to the apparent informality of the remote experience:
I guess that’s perhaps an issue … sitting in a remote [location] – being away from the court – it sort of,
it does reduce the formality of the process (Lawyer, WA).
One judicial officer spoke of the need to remind remote participants of their presence in court:
People need to understand whether they’re actually on the video, that they know that their image and
whatever they do is actually being seen by people and they don’t think, oh well because someone else
is talking the video’s not on me anymore, you know so, I can do what I otherwise would do if I think
I’m in private … they think they’re not actually connected with the courtroom (Judicial Officer, WA).
Stakeholders raised concerns that the actions of a less inhibited defendant could have an
unintentional and adverse impact on the outcome of his or her case. A judicial officer commented that
a less inhibited remote defendant was more likely to respond to a severe sentence with violence,
stating: “it seems they feel like there is a greater liberty to go ballistic on the other end of a video
camera than if they’re in court” (Judicial Officer, WA). However, this view was controverted by a
67
These comments are interesting in light of guidance about “court etiquette” on the Northern Territory Magistrates Court
website that makes explicit that the same standards of behaviour apply to persons who are present at the remote site as if they
were present at the court building: Northern Territory Magistrates Court, Understanding Court Orders, http://www.nt.gov.au/
justice/ntmc/court_etiquette.shtml viewed 25 May 2010.
Sentencing by videolink: Up in the air?
(2010) 34 Crim LJ 363 377

prison remote room support officer who oversees videolinks, who reported that defendants:
respect what we do, and they need it, so therefore they tend to not … create any more dramas in here
than they need to, or than they would or should (Remote Room Support Officer, VIC).
This view was supported by a judicial officer who commented that:
I think maybe because they see you, and they see you robed, and they see you’re in an obvious
courtroom setting … they tend to behave as if they were present in the courtroom. And I’ve never had
any difficulty in dealing with people. I suppose if there was going to be a person who was going to be
fractious, or you had any sort of advance warning, you might be careful. But no, generally speaking, no.
No problem whatsoever. (Judicial Officer, WA).
DISCUSSION OF INTERVIEW FINDINGS
Issues raised by stakeholders and suggestions as to how they might be addressed are discussed below
with reference to broader theories and concepts related to remote participation in court processes.
Overview
No stakeholder expressed the view that sentencing by videolink was never appropriate and should be
prohibited. Equally, none were prepared to provide an unqualified endorsement of this practice. The
general consensus was that sentences for major offences were best administered in person.
Interviewees expressed less reluctance to use videolink to sentence in cases involving summary
offences. Magistrates, who deal primarily with less severe criminal offences, had fewer concerns about
sentencing by videolink than did judges who typically deal with more severe criminal offences and
penalties. For some interviewees, sentencing to a term of imprisonment by videolink was not
acceptable under any circumstances, notwithstanding improvements that might be made –
technological or otherwise – to the nature of the interaction achievable via videolink. Others who did
not have an absolute view nonetheless preferred to administer sentences of this nature in person rather
than by videolink. One saw no difficulty with it where it was convenient.
Views on the uses of videolink to sentence were often correlated with opinions about the level of
interpersonal interaction and community engagement in sentencing. In sentencing for more serious
offences, concerns were expressed that (a) the defendant needed to somehow be confronted in the
courtroom; and (b) the principle of open justice requires that the public be able to witness this process.
Most interviewees doubted that these objectives could be achieved as effectively when the sentence
was delivered remotely. The task of balancing these considerations against those of efficiency and
access was one that stakeholders recommended be determined on a case-by-case basis.
Major themes that emerged in the stakeholder interviews
While the stakeholder sample in this study was not representative of all Australian States and
Territories, interviewees provided detailed and thoughtful responses on a range of particular issues and
concerns. These are summarised below.
The physical sentencing environment
Several concerns raised about the use of videolinks to sentence pertained to the potential impact of the
remote environment upon the behaviour of the remote participant. These included concerns about less
inhibited behaviour by remote defendants, fears that judicial officers might be more disposed to
impose harsher sentences and a perception that a sentence delivered in this fashion had less impact.
Essentially, these concerns centered on differences between the physical environment of the courtroom
and the physical environment provided for the remote participant.
People adjust their behaviour to be appropriate to different social settings. The physical
environment can be an important indicator or cue as to the type of “behaviour setting” one is in, and
the types of behaviour that are socially acceptable within that setting.
68
The ability to maintain front
and back regions, that is, to control the transition between one’s onstage and backstage behaviours, is
68
Goffman E, Presentation of Self in Everyday Life (Anchor Books, New York, 1959) pp 107-140. “Behaviour settings” refers
to the ways in which certain social settings are recognisable and encourage particular behaviours: see Barker R, Ecological
Rowden, Wallace and Goodman-Delahunty
(2010) 34 Crim LJ 363378

critical to a person’s “impression management”.
69
Much like a radio station with its “on air” sign, the
difference between the stage (on air) and backstage (off air) of the remote videolink space is the flick
of a switch, or the answering of a phone call. The transition between backstage and onstage for the
remote participant is transformed from a physical process to a mental one.
70
Responses from interviewees suggested that the defendant who sits in the environment of the
typical remote room may well have more difficulty in maintaining a sense that they are in a court
space, or to even comprehend the “behaviour setting” in which he or she is participating.
71
Regardless
as to whether a defendant wishes to behave appropriately during his or her court appearance, the
implication is that the ability to understand and sense what appropriate behaviour might be is
diminished by current features of the remote space and the videolink technology.
A defendant who appears remotely is effectively removed from the public and formal court
setting. Behavioural cues normally transmitted by the courtroom environment, and by the people
within it, are muddied by the frame of the remote space and the technology of the videolink. Even the
most humbly furnished magistrates’ courts can have, by way of structural features and finishes,
important environmental cues that convey a sense of respect for the participant and indicate the
seriousness of the proceedings.
72
By contrast, descriptors readily applicable to most remote spaces are
anonymous, cold, bland, windowless and small.
73
In one study where young witnesses were asked
about their experiences in remote spaces, the phrase most often repeated was: “The TV link room was
like a cupboard.”
74
The room used by defendants pictured in images released by the United Kingdom
virtual court pilot fits this description,
75
as do many of the formal and informal remote participation
sites both in Australia and overseas inspected in the course of this research.
76
A significant disjuncture
was identified between the spatial and tactile experience of most courtrooms and most remote
spaces.
77
A key issue is the way in which the remote space is – or ought to be – conceived. Although
legally “an extension of the courtroom”,
78
in practice, remote spaces often do not appear as such.
There was a tension between the way in which the remote space was being described – as embodied
in the legislation
79
and the rhetoric of interviewees – and considerations governing their design and
use. In some instances, remote rooms were being used for other purposes and more casual interactions,
Psychology: Concepts and Methods for Studying the Environment of Human Behavior (9th ed, Stanford, California, 1968);
Rapoport A, The Meaning of the Built Environment: A Nonverbal Communication Approach (2nd ed, University of Arizona
Press, Tucson, 1990) pp 57-59.
69
Goffman, n 68, pp 107-140.
70
Mulcahy, n 15 at 480.
71
Barker, n 68.
72
Arguably, within each courtroom exists a dynamic and complex web of spatial hierarchies, relationships, echoes of rituals and
structural features that have been established and refined over a long period of time. See Mulcahy L, Legal Architecture: Justice,
Due Process and the Place of Law (Routledge, London, forthcoming).
73
Rowden E, Wallace A, Hanson M and Goodman-Delahunty J, Gateways to Justice: Improving the Experience of Remote
Witnesses in Court Processes, Paper presented at the 3rd Justice Environments Conference (Sydney, 21 May 2010).
74
Plotnikoff J and Woolfson R, In Their Own Words: The Experiences of 50 Young Witnesses in Criminal Proceedings, Policy
Practice Research Series (National Society for the Prevention of Cruelty to Children, London, 2004) p 38.
75
Criminal Justice Board (UK) DVD, n 10.
76
A total of 59 site visits were undertaken in the course of this research (during 2008-2010) to assess 40 courthouses and 19
formal and informal remote participation sites in Australia and overseas.
77
Rowden et al, n 73.
78
For example: Northern Territory Magistrates Court, Understanding Court Orders, n 67.
79
Evidence (Audio and Audio Visual Links) Act 1998 (NSW), s 14(3); Evidence (Miscellaneous Provisions) Act 1958 (Vic),
s 42W; Evidence Act 1997 (Qld), ss 39I(3), 39U; District Court of Queensland Act 1967 (Qld), s 110D; Justices Act 1886 (Qld),
s 178D; Supreme Court of Queensland Act 1991 (Qld), s 116D; Evidence Act 1906 (WA), ss 121(3), 124(3); Evidence (Audio
and Audio Visual Links) Act 1999 (Tas), s 13(3); Evidence (Miscellaneous Provisions) Act 1991 (ACT), s 24(3); Evidence Act
1939 (NT), s 49W(3).
Sentencing by videolink: Up in the air?
(2010) 34 Crim LJ 363 379

and were linked less frequently to the more formal courtroom setting. Concerns expressed about the
loss of impact and inappropriate behaviour by defendants must be interpreted in light of this fact.
Impact of technology configuration on sentencing participants
Responses from stakeholders suggested that the placement and operation of screens, cameras and
microphones had a major impact on the success of the videolink process. The focus of selecting and
installing technology in many courts has been its adequacy for prison videolinks, where the defendant
appears for formal bail or remand hearings. Coupled with usual budgetary constraints, the emphasis
was usually on obtaining a robust solution; installing equipment that was relatively easy to operate,
and providing a reasonably standard interface in courtrooms across the jurisdiction.
80
These considerations generally dictate a configuration for the technology that limits the available
views. For example, in Victoria, the standard configuration for prison links usually restricts the view
provided to the remote defendant to a view of the bar table (prosecutor and defence counsel), and a
small picture-in-picture view of the judge. While these standard configurations may be easier to
operate, they fail to provide equivalence to other aspects of the physical courtroom experience that
may have significance for the defendant.
Defendants who are physically present in a courtroom for a sentencing hearing experience the
presence of the lawyers and court staff, the entry of the judge and the acknowledgement of all that by
those in attendance in court. They can observe the way the judge and lawyers interact, their body
language, and the nature and degree of power exercised by different courtroom participants. They can
possibly catch sight of a family member, or a friend. They may see the victim, the victim’s family and
supporters, in the body of the court, together with members of the media and other members of the
public who may be present.
With current videolink configurations, many of these incidental interactions are less immediate, or
lost. A defendant who is not in the physical presence of the court, and does not have the benefits of
those observations, may feel freer to “arc up” (in the words of one interviewee) knowing that the
immediate effect of a judicial admonition will be mitigated by their remoteness from the court.
Alternatively, the defendant may feel less immediately affected by a sentence imposed from that
distant place, which may feel less “real”.
The judiciary too, may be impacted by this restricted view. A judge appearing remotely to
sentence a defendant in a physical courtroom may be less sensitive to the presence of the victim, or
defendant’s family members, in that courtroom if they are out of view.
These concerns illustrate that when the highly structured court ritual operates in two discrete
locations: the courtroom in the courthouse, and the remote space – whether a prison video room, or
another courtroom – both central and incidental parts of the process are fundamentally altered. While
the key parts of the sentencing process are more or less maintained over the videolink, some of the
more incidental human interactions are not always preserved.
Exercising judicial discretion to adapt the technology to achieve sentencing goals
Judicial officers considering whether or not to use a videolink to sentence (and for other purposes)
have to decide, variously, what is “convenient”, “fair”, required by or consistent with the “interests of
justice” or the “interests of the administration of justice”, and when technology is “reasonably
available”. Many also have the power to impose conditions on the use of the link, about technical
matters such as:
• the form of audiovisual or audio link;
• the equipment, or class of equipment, used to establish the link;
• the layout of cameras;
• the standard, or speed, of transmission;
• the quality of communication; and
80
These were the opinions expressed by many of the court technology experts.
Rowden, Wallace and Goodman-Delahunty
(2010) 34 Crim LJ 363380

• any other matter relating to the link.
81
While some judges are clearly exercising this right to address current deficiencies in the set-up of
the technology – either in makeshift terms by moving people around within the courtroom, or by
pro-actively altering the configuration prior to proceedings commencing – others appear less
empowered to do so. Interviews revealed that several factors contributed to this: a lack of information
for judicial officers, having to learn on the job, a lack of adequate training and a high turnover of court
staff who oversee and operate the technology.
Acknowledging the technology with appropriate protocols
Reluctance to adjust communication technologies to fit the particular legal circumstances reflects an
underlying approach to courtroom technology that ignores the ways in which the technology alters the
courtroom experience. Often, once the link has been activated, there is an assumption that the hearing
should simply proceed as normal in accordance with existing rituals and protocols in the physical
courtroom space.
The authors’ research suggests that many of the concerns raised by stakeholders could be
addressed, or at least substantially mitigated, by re-thinking the rituals and spaces that constitute the
courtroom. Rather than ignore the technology, or assume that its presence makes no difference to the
fundamental nature of the proceedings, the authors advocate that courts acknowledge its existence,
evaluate its effects, and then consider how those rituals and spaces can be re-configured in ways that
enable them to achieve their objectives in a videolinked environment.
82
For instance, a few moments
at the commencement of the videolink spent orienting a remote participant to the courtroom space, and
ensuring that they have an adequate view of all relevant parties, might go some way to improving his
or her sense of engagement with the courtroom.
An explicit acknowledgement of changes wrought by videolinked communication in the court
process also requires consideration of how the remote participants will gain their knowledge of what
will happen, and what is expected of them in the videolink proceeding. For example, without the
visual cues available in the physical courtroom, defendants may not know exactly when their matter is
before the court; when they are “live” on the screen; and, as noted, may be at risk of behaving
inappropriately, or not attending to what is occurring.
Providing public access and participation
The involvement of members of the general public – victims, family, community, and the media – is a
basic assumption of the sentencing process. Many of the rationales for sentencing – general
deterrence, retribution, rehabilitation – are directed to community members who were affected by the
crime, both in an immediate and a more general sense.
The findings demonstrate that courts are experimenting with configurations of videolink
technology to make it possible to engage with those individuals. Examples include linking a victim
and his or her family in one location to a sentencing hearing in another; or enabling an affected
community to witness a sentencing hearing conducted elsewhere; or linking media representatives to a
crowded courtroom from another more convenient location.
IMPLICATIONS FOR PRACTICE AND POLICY
The following recommendations from the authors’ research findings are by no means exhaustive, but
offer some practical suggestions to improve the remote sentencing experience. These recommenda-
tions address both orientation for the remote participant, and the comfort, formality and configuration
of the physical environment of the remote videolink facility.
81
Children, Youth and Families Act 2005 (Vic), s 589; County Court Act 1958 (Vic), s 78.1(hf); Evidence Act 1939 (NT), s 49E;
Evidence Act 1958 (Vic), s 42E; Evidence (Audio and Audio Visual Links) Act 1999 (Tas), s 6(1).
82
In relation to rituals, see Vermeys N, Ritual, Symbolism and … Cyberjustice? A Reflection on How Ritualistic Practices Seem
to Hinder the Integration of Technology into the Legal Process, Paper presented at AIJA Law & Technology Conference
(Sydney, 27 June 2008), http://www.aija.org.au viewed 3 November 2010, p 13.
Sentencing by videolink: Up in the air?
(2010) 34 Crim LJ 363 381

Standardised preliminary protocols
The use of introductory protocols, such as providing a panoramic view of the courtroom, together with
a brief identification of courtroom participants and their roles, will help orient the defendant to the
formality of the proceeding. While many judicial officers do this already, to varying degrees, the
stakeholder interviews indicated that these practices were not currently a consistent and uniform part
of videolink court protocol and procedure.
In addition, clear signals to indicate that appearance on videolink is commencing and concluding
will provide the remote defendant the virtual equivalent of the opportunity that defendants appearing
in person have to enter the courtroom, orient themselves to their surroundings and prepare to be
“onstage” for their matter.
Clear operational protocols are needed to ensure effective liaison between the remote site and the
court, to avoid, for example, the mis-identification of defendants, and to ensure that relevant
sentencing materials, such as probation reports, are readily available at either end of the videolink as
required.
The remote sentencing environment
The significant contribution of design to achieve effective remote participation has been
underestimated. A sense of dignity, of solemnity, and of being taken seriously is the product of the
artfully crafted courtroom space, supporting a carefully performed ritual. When this space is split
across multiple sites, more careful attention to the design of remote spaces is warranted. For legal
proceedings, the spaces should be conceived as an extension of the courtroom, and convey a sense of
respect for the participant. Any number of design techniques can achieve this, such as high-quality
materials, features that promote physical and psychological well-being, generous room proportions,
technology that is carefully integrated within the joinery or built fabric of the space, and careful
detailing. Where facilities are used for more than one purpose (such as prison links connecting to both
courtrooms and solicitors’ offices), the remote space should be designed to transform easily to reflect
the behavioural cues of the space to which it is currently linked.
Technology
Improved quality and updated technology – such as more screens, larger displays, faster bandwidth
connections that provide higher visual resolution and enhanced audio quality – can address many
concerns raised by stakeholders in regard to the reliability of videolinks and their suitability. The
ability to improve transmission of non-verbal cues may overcome some concerns about lack of
impact, isolation and disconnectedness. However, an exclusive focus on technological enhancements
runs the risk of overlooking the significance of the configuration of the technology on its effectiveness
for sentencing.
Examples of adaptations to the configuration of the remote space that will remedy many of the
complaints registered by stakeholders include (a) more attention to camera and screen placement to
enhance the perception of eye-contact between participants; (b) views that enable better registration of
non-verbal cues; and (c) further experimentation with multiple audiovisual links that attempt to
recapture both overt and incidental social occurrences of the traditional courtroom and courthouse.
Combined, these changes might go some way towards adequately replicating in-person verbal and
non-verbal communication.
Support for the remote defendant
Explicit acknowledgment of the difference between in-person and videolinked sentencing requires
overcoming the difficulties of providing legal advice and support equivalent to that available to a
defendant whose lawyer is physically present with him or her in court. Just as the defendant requires
better orientation to the proceedings at the commencement of the videolink, attention must be given to
the needs of the defendant at the conclusion of the sentencing procedure. Acceptance of the role of
remote room support officers in prisons who provide immediate support – and the formalisation of
operational protocols to regulate that role – may facilitate a solution to improve the level of liaison
between defendants and their lawyers.
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(2010) 34 Crim LJ 363382

Training and empowerment of court staff
Even where existing technology is capable of more flexible operation, court staff or remote room
support staff often lack the capacity or the confidence to alter the set-up when requested, or to correct
a faulty set-up. Changes might be as simple as using wider or narrower screen shots, changing camera
angles, providing different views, or organising multi-party links. Training programs should ensure
that judicial officers and their support staff are familiar with commonly accepted standards and
protocols, and understand the potential and capabilities of the technology in their courtrooms so that
they are comfortable with the technology they operate, and are empowered to adapt it as required.
Inclusion of members of the community and the general public
The research indicated that the experience of courtroom rituals and processes in a sentencing hearing
should not be designed exclusively for the defendant, the judicial officer and the lawyers involved;
sentencing is not a private process. Careful thought should be given to the needs of various categories
of public participants – such as family members and friends of the defendant, the victim, victim’s
family members and friends, the general public and the media.
Court planners should pay regard to the development of newer forms of therapeutic and
problem-solving courts and Indigenous courts that place a strong emphasis on the involvement of the
community – family, elders or respected persons – in the sentencing process. How can these
participants be accommodated in the remote sentencing process? How can the use of videolinks best
be integrated into the practice of drug courts or community courts, where a number of agencies and
individuals might be involved in crafting a solution for a particular offender and monitoring its
progress?
CONCLUSIONS
In considering the issues raised by stakeholders about sentencing via videolink, it is important to bear
in mind that the introduction of audiovisual technology in court represents the second major
technological shift which the law has had to accommodate – the first being the shift from oral to
written modes of communication. The loss of context of the “here and now” has been a progression in
the evolution of human communication. With the advent of written communications, people could
interact unconstrained by time and place.
83
Writing liberated the judiciary and legal counsel to
enhance communication, by making refinements to their submissions and judgments. Far more legal
work now occurs outside of the courtroom than in the hearings, including preparation by the judge or
magistrate of the decision on sentencing that is ultimately presented to the offender, work that was
previously not possible in person in court or from the Bench. The current technological shift to digital
forms of communication brings about a similar shift, in that it liberates us from the restraints of travel,
time zones and remote locations.
Videoconferencing is an increasingly common method of communication, whether via Skype or
more sophisticated technology.
84
Courts are dealing with lawyers, witnesses and defendants born after
1980 who are part of the “net generation”. These individuals have been exposed to more types of
media, express more comfort with media-generated information and multi-tasking, and expect courts
to offer high-quality technological services.
85
Our institutions and organisations, including courts, are
being restructured by digitally mediated communications and the expectations of this generation. It is
timely for this shift to be explicitly acknowledged in legal settings, both in sentencing and other
judicial processes. That acknowledgment will facilitate a more critical examination of the implications
of these technologies. Careful attention to both the technological environment (quality, set-up and
83
Haldar P, “Return of the Evidencer’s Eye: Rhetoric and the Visual Technologies of Proof” (1999) 8(1) GLR 86.
84
Rideout VJ, Foehr UG and Roberts DF, Generation M
2
: Media in the Lives of 8- to 18-year-olds, Kaiser Family Foundation
Study (2010), http://www.kff.org/entmedia/8010.cfm viewed 10 June 2010; PriMetrics Inc, Telegeography Report 2009 (2009),
http://www.teleography.com viewed 10 June 2010.
85
Carrier LM, Cheever N, Rosen LD, Benitez S and Chang J, “Multitasking Across Generations: Multitasking Choices and
Difficulty Ratings in Three Generations of Americans” (2009) 25(2) Computers in Human Behaviour 483.
Sentencing by videolink: Up in the air?
(2010) 34 Crim LJ 363 383

operation) and to the built environment in which it operates might ameliorate many of the preliminary
expressed concerns about videolinked sentencing in Australia. Information, training, and explicit
attention to operational protocols that govern the way videolinks are managed, and the way that
remote participants are informed and oriented to those proceedings, will assist in this transition.
Drawing on these preliminary findings, the authors conclude that the use of videolinks can alter
the nature of sentencing proceedings, but that the implementation of meaningful strategies to address
this change have lagged, leaving much “up in the air”. Views that technology necessarily degrades the
sentencing process or renders it less effective are overly simplistic. While concerns raised by some
stakeholders suggest that sentencing is ill suited to the use of videolinks, attention to the configuration
of the technology and participants, the built environment, as well as the protocols and procedures for
videolink will go some way towards preserving the essential intent and function of sentencing when it
is conducted via videolink. Courts and justice agencies generally will benefit from keeping a close eye
on emerging research on the more general effects of technology mediated communication, both in the
courtroom and elsewhere. Courts of the future may yet find – as in the case of previous technology
shifts – that remote technology offers different (and in some cases even superior) capacities to conduct
sentencing, and other types of judicial hearings.
Rowden, Wallace and Goodman-Delahunty
(2010) 34 Crim LJ 363384