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Contrition and Reparation

The content on this page was last reviewed on 30 November 2017.

Related links:
Guilty Plea
Co-operation
Reparation Orders

1. Overview

Section 16A(2)(f) requires sentencing courts to take into account the degree to which an offender has shown contrition for their offending. Contrition may be illustrated by making reparation, or by any other means:

Section 16A

(2) In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court:

(f) the degree to which the person has shown contrition for the offence:
(i)  by taking action to make reparation for any injury, loss or damage resulting from the offence; or
(ii)  in any other manner…

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2. Meaning of Contrition

The terms ‘contrition’ and ‘remorse’ appear to be used interchangeably by courts. For example, in DPP (Cth) v Goldberg [2001] VSCA 107, Vincent JA (Winneke P and Batt JA agreeing) considered whether contrition is distinguishable from remorse. Vincent JA stated at [41]:

Whether or not a distinction that is of practical significance can be made, or was intended to be made by the legislature, between the notions of remorse and contrition under Section 16A, I have serious doubts. The section, it is to be noted, contains no reference to remorse as a sentencing consideration. Apart from what I would anticipate would be the difficulty in attributing different meanings to the words contrition and remorse which would be capable of useful application on a day to day basis, I consider that it is highly unlikely that when setting out an extensive list of factors which a sentencer was required to take into account, the presence of remorse was deliberately omitted.

In Alvares v The Queen [2011] NSWCCA 33, Buddin J (McClellan CJ at CL and Schmit J agreeing) at [38] did ‘not detect any meaningful distinction between’ the two terms of remorse and contrition.

Courts sentencing federal offenders have regularly differentiated showing ‘contrition’ as more than an offender’s feelings of regret or sorrow at their predicament. Moreover, courts have held that no genuine contrition will be found without an acceptance of responsibility, 1 or wrongdoing. 2

In the terrorism case of R v Kent [2009] VSC 375, Bongiorno J stated at [46]:

There is no doubt that Kent is sorry for having got himself into the situation in which he is facing a gaol sentence. He is doubtless sorry for having imposed the hardship of his incarceration on his family. However, whatever his feelings in this respect, I am not prepared to accept, on the material proffered, that he has abandoned the cause of violent jihad. There is no admissible evidence of his having done so, or of his being genuinely contrite for what he did (emphasis added).

In R v Alqudsi [2016] NSWSC 1227, where the offender was convicted of offences contrary to the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth), the court found the conduct of the offender did not amount to contrition. Adamson J held at [106]:

I am not sure whether his obvious distress was as a result of his concern for himself and his family if he is incarcerated, or whether he sincerely regrets what he did. He is accustomed to living a comfortable life in Sydney surrounded by a loving and supportive family and taking an active part in the community to which he belongs. I accept that incarceration will be onerous for him and that he is sorry for himself and his family that his actions have resulted in his being charged, prosecuted, convicted and imprisoned. As to whether this amounts to remorse and contrition, the highest Mr Corish could put it was that “he is displaying what I would expect from someone who is on the process to becoming contrite”. I am not persuaded that the offender is either contrite or remorseful, although he is obviously sorry that his actions have resulted in adverse consequences for himself and his family (italics in original; emphasis added).

In Alvares v The Queen [2011] NSWCCA 33, the New South Wales Court of Criminal Appeal, in discussing the meaning of contrition, stated at [44]:

[R]emorse in this context means regret for the wrongdoing which the offender’s actions have caused because it can be safely assumed that an offender will always regret the fact that he or she has been apprehended. Remorse is but one feature of post-offence conduct upon which an offender may seek to rely as a matter which has the potential to mitigate penalty. The manner in which the issue of remorse is approached is not unique to either the sentencing process or to the courtroom. Indeed, it is a common feature of everyday existence. Ordinary human experience would suggest that it is only natural that a person who has committed some misdeed would wish to make the most favourable impression possible in seeking to make amends for it. It is unsurprising that such a person would also wish to maximise the prospect that his or her expression of remorse was seen as genuine by the person or persons whose task it was to determine the appropriate sanction for the misdeed (emphasis added). 3

The degree to which a federal offender demonstrates contrition for their offending is a question of fact to be determined by the sentencing judge. 4

2.1 Sense of regret

Courts have held that an offender’s expression of contrition is distinct from a sense of regret. 5 For example in R v Hargraves [2010] QSC 188 at [45], Fryberg J found that ‘although both prisoners have expressed regret at their involvement in the scheme, neither has shown any sign of genuine remorse.’ 6

Similarly in Alvares v The Queen [2011] NSWCCA 33, the Court stated at [44] when discussing contrition:

[R]emorse in this context means regret for the wrongdoing which the offender’s actions have caused because it can be safely assumed that an offender will always regret the fact that he or she has been apprehended…

Courts have distinguished between general regret of the result of the offence and genuine contrition for committing the offence. In R v Loiterton [2005] NSWSC 905, the offender pleaded guilty to making a misleading statement to the Australian Stock Exchange pursuant to ss 999 and 1311(1) of the Corporations Act 2001 (Cth). Kirby J considered evidence of the offender’s contrition at [182]:

[G]eneralised regret about the collapse of Clifford and the dislocation to employees, is rather different from remorse for having committed the offence. Moreover, there can be no real remorse without an acceptance of wrongdoing. Although Mr Loiterton has accepted that he ought to have recognised the announcement was misleading, he plainly does not accept that he knew that the announcement was misleading, although I believe he did know (emphasis added).

The Court in Bryce v Chief Executive Officer of Customs (No 2) [2010] QSC 125, found at [107] that the offender’s contrition was not genuine as he merely ‘regret[ed] the circumstances that led to his conviction’. Fryberg J continued at [107] that genuine contrition was not found as he had not addressed the offending conduct:

[H]e has given no explanation of his motives; he has displayed no realisation of the wrongness of his actions; he has given no account of what happened to his share of the proceeds of sale of the dutiable goods; and he has expressed no remorse for blackening the characters of officers of Fiji customs, Solomon Islands customs and the late Mr Michael Quan. Unless he addresses these matters it is difficult to see how he can achieve full rehabilitation.

2.2 Acceptance of wrongdoing

An offender’s expressions of remorse will likely be considered genuine contrition where the offender has displayed an acceptance of wrongdoing.

In R v Mohamed [2016] VSC 581, the offender was convicted of three offences contrary to s 7(1)(a) of the Crimes (Foreign Incursions and Recruitment) Act 1978 Cth. The Victorian Supreme Court found while the offender displayed remorse and regret, there was not sufficient evidence of contrition as the offender did not acknowledge his purpose for travelling to Syria was to engage in foreign hostilities, despite strong evidence to the contrary. Lasry J held at [44]–[45]:

The prosecutor has pointed out several of the reference documents describe you as being ‘remorseful’, going through ‘deep regret’, demonstrating ‘repentance’, ‘sorry and remorseful’ and having ‘learnt the lessons’. I acknowledge there is a difficulty with that. You conducted your committal and trial on the basis that your purpose in going to Syria was innocent. The jury found beyond reasonable doubt that it was not. Section 16A of the Crimes Act requires me to consider the degree to which you have shown contrition for these offences. Though there is regret, I am unable to detect contrition.

 

However, ultimately, I am persuaded that in some respects you are not the same person you were in mid-2013. There have been positive changes. This is a case where the three actions you performed are not of themselves illegal or criminal. They are made so here by your intention upon reaching Syria. However, my conclusion that you are a changed person from the way you were in mid-2013 and that your reasonably good prospects for rehabilitation must be tempered by the fact that I cannot reach a conclusion that you are remorseful for what you had originally intended because you have never acknowledged, despite strong evidence to the contrary which the jury accepted, that you were going to Syria to engage in hostile activities (emphasis added).

Similarly in R v Scerba (No 2) [2015] ACTSC 359, the offender was convicted of the unauthorised disclosure of secret information by a Commonwealth Officer under s 70(1) of the Crimes Act 1914 (Cth). Refshauge J held at [78]–[79] that genuine contrition was not found as there was merely regret and not sufficient acceptance of wrongdoing:

The PreSentence Report suggests that Mr Scerba accepted responsibility for his offending, acknowledged his breach of trust of the position he held within the Department of Defence, which in part constituted the offence, but “appeared to minimise the seriousness of his actions, not considering them to pose a serious threat to Australia’s national security interests”. This is, to some extent, confirmation of the evidence from his partner, to whom he “has expressed his guilt and frustration … regarding his decisions”. She pointed out that he was at a low point in his life when he committed the offences and had “not been in the right frame of mind to think through clearly about the potential repercussions of his actions”. In light of the comments in the PreSentence Report, that appears to refer to the repercussions for him rather than his offending that appears to support it. His referees, again, referred to his regret, and, indeed, in one case, his remorse, but in terms that do not suggest a complete contrition that would allow this factor to feature significantly in any sentence.

 

There is some evidence of remorse but, in my view, of a limited level and yet to represent a full recognition of the wrongfulness, responsibility and consequences to others of his crime (emphasis added).

In R v Moylan [2014] NSWSC 944, the offender disseminated false information in relation to financial products contrary to s 1041E(1) of the Corporations Act 2001 (Cth). Davies J noted the offender’s contrition was limited as the apologies given by the offender were somewhat qualified. 7

In the terrorism case of Elomar v The Queen [2014] NSWCCA 303, the Court discussed the offender’s failure to accept wrongdoing and stated at [768]: ‘[t]here is no evidence of [the offender] stepping back from the clear extremist views he has held for some time with great firmness and conviction.’ 8

2.3 Lack of honesty

Where the offender is not truthful in the course of proceedings, it is unlikely genuine contrition will be established. 9

In R v Yavuz [2015] ACTSC 329, the offender was convicted of drug importation offences. Burns J discussed the offender entering a guilty plea which demonstrated contrition and the willingness to facilitate the course of justice at [4]. However Burns J continued at [13] that the offender’s lack of honesty indicated that the contrition was not genuine:

You claimed that your principal purpose in importing these drugs was for your personal use. I do not accept that. The number of transactions involved, the quantity of drugs imported and the value of these drugs satisfy me beyond reasonable doubt that your principal purpose was monetary gain. It is quite clear from the evidence that you stood to make a considerable profit from your crimes. To the extent you suggested otherwise, I reject your evidence. Your unwillingness to be perfectly frank about your motives suggests that you are not completely remorseful. I am satisfied that you have attempted to minimise your culpability with respect to these offences (emphasis added).

Similarly in McMahon v The Queen [2011] NSWCCA 147, the appeal judge affirmed the sentencing judge’s decision and stated at [70]:

Her Honour also took into account, as a matter tending against genuine contrition and remorse, that the appellant had not been truthful when giving evidence in his sentencing proceedings.

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3. Section s 16A(2)(f)(i): Reparation

Section 16A(2)(f)(i) expressly states that a court must take into account the degree to which the person has shown contrition for the offence by taking action to make reparation for any injury, loss or damage resulting from the offence.

In Kovacevic v Mills [2000] SASC 106, the Court addressed the relevance of reparation as evidence of an offender’s contrition. At [81], the Court stated:

Pursuant to s 16A(2)(f)(i), the Court is obliged to take into account any action by the appellant to make reparation in the context of contrition…It may be said that in arranging for reparation to be made, the appellant was doing no more than meeting an obligation imposed by law and repaying what he had illegally received by his own conduct. It should also be said that offenders cannot buy their way out of severe punishment by repaying what they should never have received. However, the Courts are obliged to regard reparation as a positive matter so far as an offender is concerned (emphasis added). 10

In R v Host [2015] WASCA 23, Buss JA explained at [104] that s 16A(2)(f)(i) is concerned with compensatory payments, rather than restitutionary:

The focus of para (i) of s 16A(2)(f) of the Crimes Act is upon contrition which the offender has shown by taking action to make reparation for any injury, loss or damage resulting from the offence, as distinct from taking action by disgorging or paying any benefits which the offender has derived from the commission of the offence. The provision requires the offender to have shown remorse by taking action to make reparation. Also, the provision is concerned with the making of compensation for injury, loss or damage as distinct from the restitution of benefits (emphasis added). 11

3.1 Where reparation evidences contrition

Reparation will be evidence of contrition where the offender was under no obligation to make such payment of reparation. For example in ACCC v Santo Pennisi [2007] FCA 2100, the corporate offender pleaded guilty to making false or misleading representations pursuant to the Trade Practices Act 1975 (Cth) s 75AZC(1)(a) 12 in relation to charges of mixing different petroleum fuel types. Logan J stated at [47]:

The corporate Defendant has made a donation to a local charity of $200,000 which will enable the purchase of land for a driver training facility. It has done that in circumstances where it was under no obligation to make any such donation. That does, in my opinion, evidence contrition … (emphasis added).

It is possible for an offender to make reparation where loss or damage to a particular person or entity cannot be readily identified. In ACCC v Santo Pennisi [2007] FCA 2100, Logan J stated at [47] regarding the donation of $200,000 to charity:

[T]hat does, in my opinion, evidence contrition. It is also in a sense a form of reparation to the community, in that whilst it is not readily possible to identify particular consumers by name who have been affected, the type of donation made at least can be seen to have the ability to benefit the motoring public through the better training of drivers or at least the enabling of a charity to undertake that task (emphasis added).

3.2 Where reparation does not evidence contrition

An offender’s act of reparation will not be sufficient to evidence contrition where it is consistent with a tactical settlement of commercial proceedings, and no other evidence of contrition is present. In R v Sigalla [2017] NSWSC 52, where the offender was sentenced for breach of directors’ duties, Adamson J concluded at [89]–[90] that the offender’s wife’s act of reparation did not evidence contrition:

It would, in my view, be inappropriate to regard the settlement of the civil proceedings between the offender and TZ Ltd by the payment by Mrs Sigalla of $250,000 as an act of “reparation”. The payment is consistent with a tactical or pragmatic settlement of commercial proceedings on the basis of no admissions and which was inclusive of costs.

 

Throughout the trial, the offender, in his evidence and through his counsel, continued to blame extrinsic factors for his predicament and bemoaned what he regarded as the ingratitude of the shareholders of TZ Ltd, whom he saw as the beneficiaries of his talent for capital raising (emphasis added).

In Dagher v The Queen [2017] NSWCCA 258, the Court found that the reparation made by the offender did not evidence contrition as it was in her financial interest to do so. In discussing the arrangements made by the offender in repaying her Centerlink debt, Adamson J (Leeming JA and Johnson J agreeing) noted at [22]:

[H]ad the applicant not made an acceptable offer to repay the debt and repayments had not been made in accordance with the agreement interest would have been compounded daily. The material also sets out other measures available to Centrelink to recover the monies owed, which were a debt due to the Commonwealth. By entering into an arrangement with Centrelink to repay the monies, the applicant was acting in her own financial interest. In these circumstances I do not regard the arrangement to repay the debt or the repayments made to date as demonstrating contrition (emphasis added).

In R v Jafari [2017] NSWCCA 152, the offender stole funds from a trust intended for an injured soldier. In considering whether payments made pursuant to s 320 of the Proceeds of Crime Act 2002 (Cth) evidenced genuine contrition, the Court held at [104]–[105]:

[T]he history of the proposed restitutionary payment demonstrates that contrition was limited. The fact that the respondent had access to property which could, at any time, have been sold to allow for the funds to be replaced, demonstrated an ongoing unwillingness to recognise the true extent of his offending.

[T]here appears to have been no offer of restitution otherwise than in answer to the proceedings under the Proceeds of Crime Act and the initial offer, days before the sentencing hearing, was simply a repayment of the amount stolen eight years earlier. That the respondent, on the eve of his sentencing, still refused to pay any interest, and then continued to negotiate some lower figure for interest than that which, on one view, the Commissioner was entitled to obtain, is a circumstance limiting the leniency which should be accorded on the basis of contrition (emphasis added).

3.2.1 Payment orders under the Proceeds of Crime Act

For an offender’s payment of reparation to be evidence of genuine contrition, the payment must be voluntary. Buss JA noted at [115] in R v Host [2015] WASCA 23 that as a result of the nature of pecuniary penalty orders under the Proceeds of Crime Act, they are not voluntary and therefore cannot be evidence of contrition:

[A]n offender will not show contrition, for the purposes of s 16A(2)(f), by paying an amount pursuant to a pecuniary penalty order. An amount paid by an offender pursuant to a pecuniary penalty order is not a voluntary payment but a payment made under compulsion in accordance with a court order. It does not evince any relevant contrition … (italics in original; emphasis added). 13

Courts have discussed whether payments made pursuant to the Proceeds of Crime Act 2002 (Cth) may be considered evidence of contrition under s 16A(2)(f)(i). The effect of s 320 of the Proceeds of Crime Act 2002 (Cth) is to prohibit the sentencing court taking into account any pecuniary penalty order imposed on the offender that relates to the offence for which they are being sentenced. 14

In the federal sentencing case of R v Host [2015] WASCA 23, Buss JA discussed the operation of 16A(2)(f) and s 320. His Honour set out at [115]:

In my opinion, on a proper construction of s 16A(2)(f) and s 320, read together:

(a) A sentencing judge must not have regard to the fact that a court with proceeds jurisdiction has made a pecuniary penalty order against an offender that relates to the offence for which he or she has been convicted and is to be sentenced.

 

(b) A sentencing judge must not have regard to the fact that:

 

(i) an offender has made, or will or may make, payment or restitution pursuant to a pecuniary penalty order of some or all of the benefits (including any services or advantages) derived by the offender from the commission of the offence; or

 

(ii) the Commonwealth has enforced, or will or may enforce, the order and thereby has recovered, or will or may recover, the penalty amount or part of it.

 

(c) If relevant and known to the court, a sentencing judge must take into account, as a mitigating factor, the degree to which the offender has shown contrition for the offence, including contrition which the offender has shown by taking action to make reparation for any injury, loss or damage resulting from the offence, provided that the reparation in question did not or will not involve payment or restitution pursuant to a pecuniary penalty order of some or all of the benefits (including any services or advantages) derived by the offender from the commission of the offence. Reparation for loss resulting from an offence may, in a particular case, involve restitution of benefits derived by the offender from the commission of the offence. That is, compensation and restitution may, in a particular case, wholly or partly overlap. However, a sentencing judge must not take into account, as a mitigating factor, any amounts paid or payable by the offender or recovered or recoverable by the Commonwealth pursuant to a pecuniary penalty order, even where overlap of that kind exists. Also, an offender will not show contrition, for the purposes of s 16A(2)(f), by paying an amount pursuant to a pecuniary penalty order. An amount paid by an offender pursuant to a pecuniary penalty order is not a voluntary payment but a payment made under compulsion in accordance with a court order. It does not evince any relevant contrition.

 

(d) A sentencing judge may have regard, as a mitigating factor, to any cooperation by the offender in resolving, relevantly, an application by a proceeds of crime authority for a pecuniary penalty order. It is necessary, in deciding whether an offender has cooperated for the purposes of s 320(a), to evaluate the offender’s response to the application by a proceeds of crime authority for a pecuniary penalty order. For example, an offender would relevantly cooperate if he or she consented to a court with proceeds jurisdiction making a pecuniary penalty order (italics in original).

3.2.1.1. Payment made prior to order commencing may go to contrition

McLure P stated in R v Host [2015] WASCA 23 at [25] that where the repayment of money obtained as a consequence of the offence is made prior to the pecuniary penalty provisions commencing, this may be taken into account as evidence of contrition. 15 The Court in R v Jafari [2017] NSWCCA 152, applied this reasoning at [39] and stated ‘at the time of sentencing no pecuniary penalty order had been made, nor any payment made.’ The Court continued at [39]:

The judge said he would make payment of the amount offered by the respondent (namely $300,000) a term of the ICO. Whether that was appropriate or within power was not debated in this Court or below. However, now the matter is before this Court a pecuniary penalty order has actually been made, and a payment made to the Commissioner on behalf of the Commonwealth which was the victim of the offence. It follows that s 320(d) would not now permit a sentencing court to take the fact of the payment into account, but the fact that the order was made by consent may provide evidence of contrition under s 320(a). Arguably, it was not made entirely consensually, but as a condition of a court-imposed ICO. Further, to the extent the belated settlement of the proceedings was consensual, it was necessary in order to free the Pyrmont property of the restraining order. As explained further below, it provided little evidence of contrition (emphasis added).

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4. Section 16A(2)(f)(ii): Shown Contrition in any Other Manner

Section 16A(2)(f)(ii) expressly states that a court must take into account the degree to which the person has shown contrition for the offence ‘in any other manner’. A review of the case law shows that sentencing courts have accepted the following conduct as demonstrating contrition:

4.1 Guilty Plea

Contrition may be shown by the offender’s decision to enter a plea of guilty. The degree of contrition shown by a guilty plea will vary from case to case and may depend on the motivation underpinning the offender’s decision to enter a plea of guilty. 16

In R v Jousif [2017] NSWSC 1299, three co-offenders were convicted of conspiring to bribe an Iraqi official contrary to ss 11.5(1) and 70.2(1) of the Commonwealth Criminal Code. Adamson J stated at [261] that contrition is one factor that may be demonstrated by a plea of guilty:

[I]n some circumstances a plea of guilty may indicate contrition by demonstrating genuine remorse; an acceptance of responsibility; and/or a willingness to facilitate the administration of justice …

His Honour continued at [263]:

In these circumstances, I infer that each of the offenders has expressed some degree of contrition by pleading guilty a week before the trial was due to commence. Their several intentions to facilitate the administration of justice have had the effect that the time and costs of the trial, with potential appeals, have been saved … (emphasis added).

The time at which the guilty plea was entered will be relevant when determining the degree of an offender’s contrition.

In ACCC v Carrerabenz Diamond Industries Pt Ltd [2008] FCA 1103, Logan J observed at [24] that:

A plea of guilty, at least when given at an early stage, can be evidence of contrition. When given in the course of a trial, as this plea was, the weight, so far as contrition is concerned, of the plea of guilty is moot indeed. 17

However, in R v Hudson [2016] SASCFC 60, Nicholson J (Parker and Lovell JJ agreeing) upheld the finding of the sentencing judge that the offender displayed evidence of contrition, notwithstanding her late guilty plea. The Full Court noted at [13]:

It is true that the appellant defended the matter at trial and, in this respect, demonstrated a lack of insight and a lack of contrition. As a consequence, she was not entitled to the leniency, usually expressed by way of a deduction from the notional head sentence, that would have been allowed had she pleaded guilty and avoided the need for a trial. However, and as the Judge noted in her remarks, the appellant has, albeit belatedly, come to a position of remorse and insight. As the Judge observed:

 

You say that you are actually grateful for your eventual detection, for your own safety and for the safety of whomever the heroin was destined. You say your experiences in custody have given you insight into the devastating effects of drugs such as heroin. You say your eyes have been open to that world… (emphasis added). 18

In CEO of Customs v Kaufusi [2012] NSWSC 200, a plea of guilty absent of other evidence of remorse was found to not be sufficient in establishing genuine contrition. Rothman J held at [47]:

Other than the plea of guilty, there is no direct evidence before the Court of his remorse or contrition. The plea of guilty does show a degree of remorse and/or contrition, in this case, but not to the degree required to substantially reduce sentence. Furthermore the defendant’s conduct was planned and premeditated, despite the defendant’s contrary submission. It is clear from the defendant’s criminal history that he would have continued to import kava to Australia if he had not been caught (citations omitted, emphasis added).

A guilty plea may not illustrate contrition where there is a strong Crown case, such that entering a plea of guilty merely reflects the inevitability of conviction. In R v Kent [2009] VSC 375, [44], Bongiorno J stated:

By pleading guilty he has saved the cost and inconvenience of a trial which might have taken up to two months. However, whether that plea bespeaks remorse in any conventional sense is more difficult to resolve…the forensic benefit of Kent’s plea of guilty, when combined with the long period of pre-sentence detention he has already served, may have made the entry of that plea an extremely wise decision quite aside from any question of remorse. The case against him was strong on both counts and the benefit of pleading guilty was obvious (emphasis added).

Likewise in R v Lam [2005] VSC 98, a guilty plea will not be evidence of contrition where conviction is inevitable. Kellam J stated at [54]:

Your plea of guilty, deserving as it is of transparent discount, does not come about by reason of remorse or contrition. It comes about by reason of the clear recognition on your part of the inevitability of your conviction and the likely sentence which would follow such a conviction.

In R v Karan [2013] NSWCCA 53, Adamson J (Johnson and Harrison JJ agreeing) held at [72]:

The respondent’s plea of guilty was entered at a time when he knew that Mr Faridani was available to give evidence as a Crown witness against him and he knew of all of the surveillance evidence which formed the Crown case against him. Because he was party to conversations with Faridani and Considine, had also communicated with the brokers for collection of the consignment and accompanied Considine to the collection point, he must have appreciated that the Crown case against him was overwhelmingly strong. It would not be unduly cynical to conclude that his plea of guilty was entered with a view to minimising his sentence as distinct from evincing a willingness to facilitate the course of justice or because of any remorse or contrition which he felt as a result of his wrongdoing (emphasis added).

See further Guilty Plea.

4.2 Co-operation with law enforcement and authorities

Contrition may be evidenced by the offender’s assistance or co-operation with law enforcement authorities. In DPP (Cth) v AB [2006] SASC 84 at [34], Perry J (Nyland and Layton JJ agreeing) cited with approval the following passage from R v Cartwright (1989)17 NSWLR 243: 

It is clearly in the public interest that offenders should be encouraged [sic] to supply information to the authorities which will assist them in bringing other offenders to justice and to give evidence against those other offenders in relation to whom they have given such information. In order to ensure that such encouragement is given, an appropriate reward for providing assistance should be granted, whatever an offender’s motive may have been in giving it, be it genuine remorse or contrition or simply self-interest… If of course the motive with which the information is given is one of genuine remorse or contrition on the part of the offender, that is a circumstances which may well warrant even greater leniency being extended to him, but that is because of normal sentencing principles and practice (emphasis added).

See further Co-operation.

4.3 Contrition Demonstrated by Conduct

An offender’s contrition may be evidenced through their conduct.

In R v Crumpton [2016] NSWCCA 261, the offender was convicted of operating an aircraft in a reckless manner contrary to ss 20A(1) and 20A(2) of the Civil Aviation Act 1988 (Cth). The offender’s recklessly low flying resulted in a plane crash where one of the two passengers died. Davies J (Beazley P and Garling J agreeing) noted the sentencing judge’s findings that the offender had displayed signs of contrition through the offender’s conduct at the scene and reparation. The Criminal Court of Appeal noted at [32]:

The Sentencing Judge accepted his remorse and contrition which he said was demonstrated immediately by the efforts he made to assist in the recovery of Kayla’s body from the plane and then walking some four kilometres or so to find help notwithstanding the injuries he had sustained in the accident. The Sentencing Judge also noted that he had made a payment of some $300,000 to Mr Whitten despite the fact that he was being sued by him for nervous shock.

In R v Adler [2005] NSWSC 274, the offender had committed dissemination of false material and breach of directors’ duties offences contrary to ss 99 and 184(1)(b) of the Corporations Act 2001 (Cth). The court found that contrition of the offender was evidenced through expressions of remorse, and voluntarily returning the Membership of the Order of Australia, ‘acknowledging that it was inappropriate to retain it in the light of the criminal charges.’ 19

Voluntarily engaging in counselling to address conduct related to the commission of the offence, may be considered evidence of genuine contrition. For example, in Lyons v The Queen [2017] NSWCCA 204 the offender was convicted of multiple state and federal child exploitation material offences. Davies J (Simpson JA and Harrison J agreeing) found at [94] that the act of the offender and his wife selling their house to enable him to continue seeking counselling supported the finding of genuine contrition:

My assessment from the evidence of the applicant and the report of Dr O’Dea is that the applicant is remorseful for the offending. The decision of the applicant and his wife to sell their house to enable him to afford ongoing treatment and counselling attests to that. I regard his prospects of rehabilitation as moderate having regard to the success that was achieved during and after counselling with Dr O’Dea but bearing in mind the relapse which led to the present offending. The sale of the house for the purpose of meeting the costs of counselling, together with the support from his wife are also positive indications for his rehabilitation (emphasis added). 20

In DPP (Cth) v Nippon Yusen Kabushiki Kaisha [2017] FCA 876, the offender, a corporation, was convicted of an offence of giving effect to a cartel provision contrary to s 44ZZRG(1) of the Competition and Consumer Act 2010 (Cth). 21 These offences involved shipping almost 70,000 vehicles to Australia while engaged in anti-competitive conduct. Wigney J noted the measures taken to improve the culture of compliance within the company had demonstrated contrition. The measures taken were explained at [201]:

There could be no doubt that since September 2012, NYK has taken a large range of measures to strengthen the culture of compliance with competition laws and prevent any recurrence of the contraventions that occurred in the Car Carrier Group in the years prior to 2012. The measures include, in very brief terms: management changes; consultation with external specialist competition law advisers; the establishment of an entirely new compliance regime called the “FTPG New Deal”; the establishment of the Compliance Executive Committee, which includes NYK’s most senior executives; a compliance pledge that all NYK employees are required to sign; a leniency policy and whistle-blower protection to encourage staff who have engaged in or witnessed violations of competition laws to report the violations to the Legal and Fair Trade Promotion Group; the conduct of formalised and systematic competition law risk assessments of each group within NYK; and global face to face competition law compliance training, which includes education of staff concerning competition laws in the jurisdictions relevant to them. NYK has also withdrawn from all conference agreements to which it has been a party (emphasis added).

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5. Factors which may affect weight given to expressions of contrition

5.1 Offender’s Testimony

Courts have favourably considered direct testimony from offenders. For example in Barbaro v The Queen [2012] VSCA 288, the Court held at [38], [40]:

It follows, in our view, that a person wishing to rely on remorse as a mitigating factor needs to satisfy the court that there is genuine penitence and contrition and a desire to atone.  In many instances, the most compelling evidence of this will come from testimony by the offender.  A judge is certainly not bound to accept second-hand evidence of what the offender said to a psychiatrist or psychologist or other professional, let alone testimonials from family or friends, or statements from the Bar table.

But sentencing discounts, and especially significant sentencing discounts, should not be given unless remorse is established by proper evidence, or unless on a proper basis the judge is content to relieve the offender of the need to discharge that burden.  In adopting the necessary ‘precision of approach … in complying with the obligation to take the plea of guilty into account’, sentencing judges should approach with caution assertions that the plea itself is a sufficient basis for a conclusion that remorse is present, warranting a discount over and above that which is to be granted on the basis of utility.  As Redlich JA and Curtain AJA point out in Phillips, ‘[t]he conduct and statements of the offender over time provide a more informative and precise guide than the plea alone as to whether genuine and deep contrition exists’ (emphasis added; footnotes omitted). 22

Similarly in Alvares v The Queen [2011] NSWCCA 33, Buddin J (McClellan CJ at CL and Schmidt J agreeing) stated at [44] that a finding of genuine contrition under s 16A(2)(f):

[I]s likely to be assessed as having increased prospects if the expression of remorse, whether it be by deed or word, is communicated directly, rather than indirectly to those responsible for determining the sanction. By the same token, an assessment of the genuiness of the remorse by the person or persons to whom it is expressed, is likely to be better informed in circumstances in which it is expressed directly, that is face to face. That is because remorse is an intrinsically subjective matter, the evaluation of which depends upon the subtleties of human interaction (emphasis added). 23

Buddin J found in R v De Silva [2011] NSWSC 243 that while there was evidence of contrition, the extent of this contrition was difficult to determine as the offender had not given evidence in person. 24

5.2 Unsworn Statements

Evidence of contrition presented in an unsworn affidavit is a relevant sentencing factor, but may be given less weight. 25

For example, in Van Zwam v The Queen [2017] NSWCCA 127, there was evidence of the offender’s contrition in his affidavit, however this was not tested in cross-examination. Macfarlan JA, (Campbell J agreeing) held the sentencing judge was in error by disregarding the evidence of contrition, finding instead that the untested evidence of the affidavit should have been given less weight. His Honour stated at [6]:

If the Crown chose not to cross-examine Mr Van Zwam on his affidavit, Mr Van Zwam should not be prejudiced by that choice. However Mr Van Zwam was in fact prejudiced by his Honour’s finding that he was “unable to find any genuine evidence of remorse or contrition” (emphasis added) when there was apparently genuine (although untested) evidence of remorse and contrition in Mr Van Zwam’s affidavit. Although his Honour might have been entitled to treat this as of less weight than evidence given orally, he was not entitled to disregard it altogether. If Mr Van Zwam declined to be cross-examined on his affidavit, the Crown should have objected to the affidavit being read, or at least ensured that any such refusal to be cross-examined was recorded in the transcript (emphasis added).

In a separate but concurring judgement, Campbell J stated at [113]:

In my opinion, in the absence of challenge or dispute by way of cross-examination, the learned sentencing judge was not entitled to reject the evidence of Mr Van Zwam, his Honour not having said he found it inherently implausible… 26

Similarly in Islam v The Queen [2016] NSWCCA 233, where the offender was convicted of a money laundering offence contrary to ss 400.3(1) and 400.9(1) of the Commonwealth Criminal Code. An appeal against sentence was brought in relation to evidence of the offender’s contrition. The sentencing judge found that although the offender had entered a guilty plea which was capable of being considered an expression of contrition, the offender had not given evidence about this contrition and therefore the expression was not supported by sworn evidence. 27 The approach taken by the sentencing judge was affirmed by Johnson J (Hulme and Davies JJ agreeing) on appeal at [97]–[98]:

I do not consider that the sentencing Judge erred in taking into account the absence of evidence from the Applicant on the question of contrition and remorse. His Honour did not purport to apply s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999 (NSW). Rather, his Honour had regard to all matters that were capable of shedding light upon the existence of genuine contrition and remorse, as to which the Applicant bore the onus of proof to the civil standard.

The sentencing Judge was entitled to have regard to the absence of sworn evidence from the Applicant concerning contrition. This Court has said repeatedly that limited weight ought be given to the self-serving, untested statements made in a report of a health professional (R v Qutami at 377 [58]–[59], 380 [79]) or in a presentence report (R v Palu [2002] NSWCCA 381; 134 A Crim R 174 at 184–185 [40]–[41]). I do not accept that his Honour determined to put the question of contrition to one side because the Applicant had not given sworn evidence (emphasis added).

The Court continued at [103]:

[T]he fact that the Applicant did not give evidence of contrition was a relevant and important aspect bearing upon the exercise of the sentencing discretion.

5.3 Letters from the offender to the court

Courts may accept letters from the offender to the court as displays of genuine contrition. For example in Omorogbe v The Queen [2013] NSWCCA 201, the sentencing judge accepted the offender was contrite as evidenced through a letter to the court. 28 Latham J (Macfarlan JA and Adams J agreeing) noted at [34]:

The applicant wrote a letter to the judge expressing his contrition, which his Honour accepted. He pleaded guilty at the earliest opportunity and was accorded a 25% discount for his plea. He had no prior convictions. He was in debt at the time and was an illegal immigrant. He had no history of drug use or addiction and no relevant illness apart from high blood pressure. He had used his time since his arrest to improve himself within the prison system. His Honour found that he was unlikely to re-offend.

However in DPP (Cth) v Blackman [2014] NSWCCA 90 where both offenders sent letters to the Court expressing their feelings of contrition and remorse, Bellew J (Beazley P and Hulme J agreeing) upheld the sentencing judge’s finding that expressions of contrition will be given less weight where neither offender has given evidence. 29

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6. Interaction with Other Sentencing Purposes

6.1 Rehabilitation

Evidence of genuine contrition may indicate the offender has reasonable prospects of rehabilitation, 30 and may work to reduce the sentence otherwise imposed. In Barbaro v The Queen [2012] VSCA 288, Maxwell J, Harper JA and Forrest AJA stated at [39]:

If there is evidence of remorse, and if that remorse is genuine, it is a very important element in the exercise of the sentencing discretion. Remorse of this kind enhances prospects of rehabilitation and reduces the need for specific deterrence. An offender who pleads guilty because he or she has an accurate appreciation of the wrongfulness of his or her offending, and of its impact upon its victim or victims, and who desires to do what reasonably can be done to repair the damage and to clear his or her conscience, is someone to whom mercy — in the form of a material reduction in what would otherwise be an appropriate sentence — is very likely due (emphasis added). 31

The Court in Bryce v Chief Executive Officer of Customs (No 2) [2010] QSC 125, found at [107] that the offender’s contrition was not genuine as he merely ‘regret[ed] the circumstances that led to his conviction’. Fryberg J continued at [107] that full rehabilitation could not be achieved as he had not addressed the offending conduct:

[H]e has given no explanation of his motives; he has displayed no realisation of the wrongness of his actions; he has given no account of what happened to his share of the proceeds of sale of the dutiable goods; and he has expressed no remorse for blackening the characters of officers of Fiji customs, Solomon Islands customs and the late Mr Michael Quan. Unless he addresses these matters it is difficult to see how he can achieve full rehabilitation (emphasis added).

See further Rehabilitation.

6.2 Deterrence

Kirby J has suggested in Cameron v The Queen [2002] HCA 6 at [65] that evidence of genuine contrition may indicate less emphasis needs to be placed on general deterrence:

[W]here genuine remorse is established to the satisfaction of the sentencing judge, it may be in the public interest to mitigate punishment further as a reinforcement for the prisoner’s resolve to avoid repetition of such conduct in the future and as an example to others…

Evidence of genuine contrition may indicate less emphasis needs to be placed on specific deterrence, 32 and may work to reduce the sentence otherwise imposed. 33

The rationale for the reduction in the need for specific deterrence was discussed in Barbaro v The Queen [2012] VSCA 288 where Maxwell P, Harper JA and Forrest AJA stated at [39]:

If there is evidence of remorse, and if that remorse is genuine, it is a very important element in the exercise of the sentencing discretion. Remorse of this kind enhances prospects of rehabilitation and reduces the need for specific deterrence. An offender who pleads guilty because he or she has an accurate appreciation of the wrongfulness of his or her offending, and of its impact upon its victim or victims, and who desires to do what reasonably can be done to repair the damage and to clear his or her conscience, is someone to whom mercy — in the form of a material reduction in what would otherwise be an appropriate sentence — is very likely due (emphasis added).

Similarly in R v Zhu [2013] NSWSC 127, Hall J held at [221] that as a result of the genuine contrition displayed by the offender, less weight was to be given to specific deterrence:

This conclusion is reached on the basis of his good character, his plea of guilty, his obvious and genuine contrition and acceptance of responsibility for his offences, and the fact that he has the support of his family. In these circumstances there is little requirement for the sentences to be imposed to reflect the need for personal deterrence.

6.2.1 Lack of contrition and deterrence

Where the offender displays an absence of contrition, the court may find there is a greater need for deterrence. For example in R v Cashin [2016] ACTSC 351, the offender was convicted of state and federal offences including using a carriage service to commit various child exploitation offences. 34 Rares J held at [47]:

Your lack of insight and contrition for your crimes in counts 9 to 11 and 13, involving your electronic communications with the victim, are troubling. I consider that the punishment I must impose should address the need to deter you, as well as others, from engaging in similar conduct in the future.

Similarly in the tax fraud case of DPP (Cth) v Gregory [2011] VSCA 145, the Court found at [54] that a custodial sentence will usually be necessary where the offender has engaged in sophisticated offending conduct and has shown no contrition:

In many if not most cases, imprisonment will be the only sentencing option for serious tax fraud in the absence of powerful mitigating circumstances. A sophisticated degree of planning accompanied by a lack of contrition should ordinarily lead to a more severe sentence of imprisonment (emphasis added). 35

The Victorian Court of Appeal held in DPP (Cth) v Watson [2016] VSCA 73, at [62] that as a result of the offender’s lack of contrition, specific deterrence was a necessary sentencing factor:

[The offender] continued to offend post-arrest, showed a lack of insight into the harm he caused, lack contrition, and was a moderate to high risk of reoffending meant that specific deterrence had to be given prominent weight in the sentencing calculus (emphasis added).

See further Deterrence.

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Notes:

  1. R v Hall (No 2) [2005] NSWSC 890, [112] (Kirby J).
  2. R v Loiterton [2005] NSWSC 905, [182] (Kirby J).
  3. Affirmed in Islam v The Queen [2016] NSWCCA 233, [96].
  4. Richard Fox and Arie Freiberg, Sentencing: State and Federal Law in Victoria (Thomson Reuters, 3rd ed, 2014) [6.95]; R v Rivkin [2004] NSWCCA 7, [118].
  5. See, eg, Sanchet v DPP (Cth) [2006] NSWCCA 291, [26], where Basten JA indicated that the offender’s feelings of deep shame were not consistent with contrition.
  6. See also Nguyen v The Queen [2016] NSWCCA 5, [64] (Bellew J, Gleeson JA and Rothman J agreeing).
  7. R v Moylan [2014] NSWSC 944, [95] (Davies J).
  8. See also Elomar v The Queen [2014] NSWCCA 303, [178].
  9. See, eg R v Sigalla [2017] NSWSC 52, [85].
  10. Applied in federal sentencing case Twigden v Centrelink [2010] SASC 154, [51] (Gray J). See also ACCC v Chubb Security Australia Pty Ltd [2004] FCA 1750, [97]–[101].
  11. Applied in federal sentencing case R v Allred [2015] ACTSC 327, [55]–[56] (Refshauge ACJ).
  12. The Trade Practices Act 1975 (Cth) was repealed and replaced with the Competition and Consumer Act 2010 (Cth). See now, Competition and Consumer Act 2010 (Cth), Sch 2, s 29(1)(a).
  13. See also Islam v The Queen [2016] NSWCCA 233, [100]–[101].
  14. Proceeds of Crime Act 2002 (Cth) s 320(d). The full court in R v Host [2015] WASCA 23 found that ‘pecuniary penalty orders’ extended to payment pursuant to pecuniary penalty orders: [18] (McLure P); [103] (Buss JA); [196] (Mazz JA).
  15. See also R v Host [2015] WASCA 23, [198] (Mazza JA).
  16. See, eg, R v Adler [2005] NSWSC 274, [48]; R v Hall (No 2) [2005] NSWSC 890, [109].
  17. See also ACCC v Rana [2008] FCA 374, [63]; R v Cassidy [2005] NSWSC 410, [43].
  18. See also R v Moylan [2014] NSWSC 944, [92] (Davies J) where entering a guilty plea late will not be taken as evidence of a lack of contrition.
  19. R v Adler [2005] NSWSC 274, [48].
  20. See also R v Philpot [2015] ACTSC 96, [46].
  21. The Competition and Consumer Act 2010 (Cth) was amended by the Competition and Consumer Amendment (Competition Policy Review) Act 2017 (Cth) and the provision renumbered, see now s 45AG(1) of the Competition and Consumer Act 2010 (Cth).
  22. Note: this case was heard on appeal in Barbaro v The Queen [2014] HCA 2 however the issue of contrition was not addressed.
  23. Affirmed in Islam v The Queen [2016] NSWCCA 233, [96], see also [95]. See also state sentencing case Mun v The Queen [2015] NSWCCA 234 where contrition will not usually be established where there is no direct evidence from the offender.
  24. R v De Silva [2011] NSWSC 243, [62].
  25. See, eg, Dagher v The Queen [2017] NSWCCA 258, [19].
  26. See further, Van Zwam v The Queen [2017] NSWCCA 127, [124]–[125] (Campbell J) where the offender’s contrition was based on findings of previous good character and age.
  27. Islam v The Queen [2016] NSWCCA 233, [43].
  28. Omorogbe v The Queen [2013] NSWCCA 201, [40].
  29. DPP (Cth) v Blackman [2014] NSWCCA 90, [16].
  30. See, eg, DPP (Cth) v Goldberg [2001] VSCA 107, [39]. See also Dagher v The Queen [2017] NSWCCA 258, where the Court held at [23] that the evidence was not sufficient to find contrition, it was not sufficient to find positive prospects of rehabilitation either.
  31. Note: this case was heard on appeal in Barbaro v The Queen [2014] HCA 2 however the issue of contrition was not addressed.
  32. R v McKay [2007] NSWSC 275, [62].
  33. Barbaro v The Queen [2012] VSCA 288, [39]. Note: this case was heard on appeal in Barbaro v The Queen [2014] HCA 2 however the issue of contrition was not addressed.
  34. ss 474.27A(1) and 474.27(1) of the Commonwealth Criminal Code.
  35. Applied in Dragojlovic v The Queen [2013] VSCA 151, [299].