Sentencing at a distance: Video links from prison

C. McKay

University of Sydney, carolyn.mckay@sydney.edu.au

Since 2007 amendments to the Evidence (Audio and Audio Visual Links) Act 1998 (NSW), sentencing hearings are no longer treated as ‘physical appearance proceedings’. This means that there is now a presumption in favour of appearance by audio visual link from a correctional centre for incarcerated defendants. Sentencing in an open court has long been considered a significant legal procedure and ritual, with symbolic weight attached to the judge sentencing the offender face-to-face. However, with the presumption in favour of custodial appearance during sentencing hearings, the offender instead appears in prison attire from their site of incarceration. Drawing on fieldwork interviews with NSW prisoners, I examine how sentencing at a distance by video link impacts prisoners’ legal experiences. Several prisoners spoke to me regarding the prejudicial impression created by their remote and carceral appearance, for instance, M11 told me: ‘If the judge has already seen you in [prison] greens then sort of like: ‘Oh well, he’s already in them, you know, we’ll leave him in them’ [laughs].’ Prisoners also spoke of their inability to express remorse and ‘face the consequences’ (F06) during video links. Furthermore, pursuant to the Crimes (Sentencing Procedure Act) 1999 (NSW), I investigate how video links affect the purposes of sentencing in addressing the offender to articulate an unequivocal message of deterrence and denouncement; to make the offender accountable for his or her actions; and to recognise the harm inflicted on the victim of crime.

Biography

Carolyn McKay holds a combined Commerce/Law degree (UNSW), two Masters degrees (Sydney) and is an academic member of the New South Wales Bar Association. In 2016 she completed her PhD at Sydney Law School where she lectures in Criminal Law, The Legal Profession and Legal Research.

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