Remorse has been one of the most crucial and yet least understood influence on the illegal act and the corresponding length of sentence to be imposed by a criminal court (The Conversation, 2018). Although there are arguments over the consideration of remorse within the legal and psychological communities while addressing the sentence of the offenders. Despite not being and expressive concept, remorse has been considerable extensive evidence in sentencing at common law (Neal v R; Harris v R; R v Tiddy; Darwin v Samuels). The present paper provides an insight of consideration of remorse over the response of an illegal act by the offender. The reader will get an overview of the remorse as a mitigating factor in reducing the sentencing and how it is not an effective approach in criminal justice.
Remorse can be understood and explained as a feeling which is composed of regret, shame and contrition. There are different definitions of this particular concept. This psychological feeling is an expected result of wrongdoing to the society by an individual and has been acting as a considerable factor while sentencing the offenders in the criminal judgements (Henson, 2018). The feeling of remorse by the offender for the illegal act can be deduced in a variety of ways including a plea of guilty, post offending behaviour, conduct in the criminal proceedings and offender’s commentary (Corwin, Cramer, Griffin & Brodsky, 2012).
The factor of remorse in a criminal justice system while considering the case of an illegal act has not been placed in any of the legislation so far in the nation. As provided in the Sentencing Act 1995 (WA) (Act), where are provisions provided in part 2 of the act as well as section 9AA of the Act where the sentencing of the offender can be reduced from the head sentence ( s 9AA(1)) to an offence which is 25% for the plea of guilty (s 9AA(3)). Consideration of guilty plea as an indication of remorse from the offender is arguable and not has been provided as a mitigating factor in the legislation till now.
The other reason to not support the remorse as a factor to be considered in an illegal act is the issue of differentiating the genuine remorse over others and implement the same in the sentencing. The consideration of genuine remorse has often been raised by the judges in various judgements. The genuine remorse is measured with the distinction between the actual or contribute regret over the offence committed on the harm that has been inflicted by the offender to the victim (JD v The State of Western Australia; Wallam v The State of Western Australia; A Child v The State of Western Australia). The consideration of the genuine remote can be explained with the help of the case R v Acar. In this case, the offender has murdered her daughter but while deciding the judgement of the case, Curtain J dictated that the conduct of the offender is not genuine as he's still to express and interpret the laws and the pain that he has incurred on the mother of his daughter and their family. The court sentenced life sentence on the offender considering the lack of genuine remorse and the various issues with respect to the safety of the community and the horrifying facts of this particular murder case (R v Acar).
There are various theories which also advocate the consideration of remorse in the legal system to be not as effective as it has been expected by many of the thinkers and jurists. One of the theories which advocates that remorse should not be a considerable feature while considering the case of the illegal act before the judges are the unfair advantage theory (Enblom, 2019). This theory provides that when an individual has committed an offence, he has created an exclusive opportunity of having an advantage over the rest of society. Thus, the punishment provided should be in such a nature that it would cancel and nullified that advantage. As a result of the context of the theory, it can never be addressed if removes of the offender will be considered. The application of remorse also does not assist in determining the gravity of the sentence and the illegal act that has been committed by the offender. The Retributivist theory, a forward-looking theory, which is primarily concerned with assigning punishments that should be in the proportion to the gravity of the offence to suggest that having a feeling of remorse after committing an illegal act neither assist in the determination of the blameworthiness of the defendant nor not they help repair the harm that has been inflicted on the victim and their family
The inclusion of remorse as a factor to mitigate and reduce the punishment is also facing criticism based on the fact that if a reduction in punishment is provided to the offender over the illegal act and on the basis of the fact that if the purpose of the punishment is to induce only the remorse then punishing the offender again will not make any sense as he is already a repentant offender. It is also notable from the perspective of the victim as well as the criminal system that feeling remorse cannot change the past which has already been occurred and the current emotion of regret with moral ethics and duties cannot alter the past events. The position and situation of the victim will not be saved by the remorse of the offender.
The careful analysis of various cases and judgments along with the various theories provide that the consideration of remorse in an illegal act should be given significant weightage as genuine remorse cannot be differentiated before the court effectively. Moreover, the application of reduction of sentencing over the factor of remorse of the offender will not help or alleviate the pain and the loss of the victims. Clearly, there is a lack of clarity and consistency with respect to the role that the remorse should play in a sentencing decision in an illegal act.
Sentencing Act 1995 (WA)
A Child v The State of Western Australia  WASCA 285
Darwin v Samuels (1971) 1 SASR 411, 423 (Walters J)
Harris v R  SASR 316
JD v The State of Western Australia  WASCA 147
Neal v R  HCA 55; (1982) 149 CLR 305
R v Acar  VSC 310.
R v Tiddy  SASR 575
Wallam v The State of Western Australia  WASCA 115
Corwin, E., Cramer, R., Griffin, D. & Brodsky, S. (2012). Defendant Remorse, Need for Affect, and Juror Sentencing Decisions. The journal of the American Academy of Psychiatry and the Law. 40. 41-9.
Enblom. K. (2019). Duff’s communicative theory of punishment. Retrieved from: https://www.diva-portal.org/smash/get/diva2:1366152/FULLTEXT01.pdf
Henson, J. (2018). Remorse and the Courts: A Defence of Remorse-based Sentencing. School of Social Sciences. Retrieved from: https://pdfs.semanticscholar.org/70d2/c9a92703b606f499b13053d8fcb0a02cc1c1.pdf
Maculan, E. & Gil, A. (2020).The Rationale and Purposes of Criminal Law and Punishment in Transitional Contexts, Oxford Journal of Legal Studies, 40(1), 132–157, Retrieved from: https://doi.org/10.1093/ojls/gqz033
The Conversation. (2018). How remorse alone can sometimes change the past for those who have been wronged. Retrieved from: https://theconversation.com/how-remorse-alone-can-sometimes-change-the-past-for-those-who-have-been-wronged-89257
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