Last Updated: 12 November 2010

List of subheadings:

Contrition under the Crimes Act 1914 (Cth)
Definition of Contrition
Scope of s 16A(2)(f)
-'Reparation'
-'Any Other Manner'
--Guilty Plea
--Cooperation

Related links:

Guilty Pleas
Cooperation

Commentary on Contrition under the Crimes Act 1914 (Cth)

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 reparations, or by any other means:

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Definition of Contrition

In Director of Public Prosecutions (Cth) v Goldberg [2001] VSCA 107, Vincent JA (with whom Winneke P and Batt JA agreed) considered whether contrition is distinguishable from remorse. The terms appear to be used interchangeably. 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 S16A, 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.

Courts sentencing federal offenders have regularly differentiated contrition from an offender’s feelings of regret or sorrow at their predicament. Contrition involves acceptance of wrongdoing.

In R v Hall (No 2) [2005] NSWSC 890, Kirby J stated at [112] that:

There can be no real remorse without an acceptance of responsibility.

In R v Kent [2009] VSC 375, [44], Bongiorno J noted that remorse is a difficult concept, further stating 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.

See also Bryce v Chief Executive Officer of Customs (No 2) [2010] QSC 125, [107]; R v Hargraves [2010] QSC 188, [45].

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). Justice Kirby considered evidence of the offender’s contrition at [182]:

... generalised 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.

See also Sanchet v Director of Public Prosecutions (Cth) [2006] NSWCCA 291, [26], where Basten JA indicated that the Appellant’s feelings of deep shame were not consistent with contrition.

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Scope of s 16A(2)(f)

The degree to which a federal offender demonstrates contrition for their offending is a question of fact to be determined by the sentencing judge.[1]

That an offender has shown contrition may serve multiple functions within the sentencing process. For example, evidence of contrition may indicate that:

• An offender has reasonable prospects of rehabilitation: Director of Public Prosecutions (Cth) v Goldberg [2001] VSCA 107, [39];
• Less emphasis may be placed on specific deterrence: R v McKay [2007] NSWSC 275, [62];
• Less emphasis may be placed on general deterrence: Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339, [65] (Kirby J); and
• There may be less need for community protection: R v Atik [2007] VSC 299, [64]-[66].

Section 16A(2)(f) indicates that an offender may show contrition by taking action to make reparation, or in any other manner. The following factors may illustrate a federal offender’s contrition for their criminal conduct.

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'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 reparations as evidence of an offender’s contrition. At [81], the Court stated:

Pursuant to s16A(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.

See also: Twigden v Centrelink [2010] SASC 154, [51]-[52]; Australian Competition and Consumer Commission v Chubb Security Australia Pty Ltd [2004] FCA 1750, [97]-[101].

It may be possible for an offender to make reparation where loss or damage to a particular person or entity cannot be readily identified. In Australian Competition and Consumer Commission v Santo Pennisi [2007] FCA 2100, the corporate Defendant pleaded guilty to making false or misleading representations pursuant to the Trade Practices Act 1975 (Cth) s 75AZC(1)(a) in relation to charges of mixing different petroleum fuel types. Justice Logan 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. 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.

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'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'. For example, sentencing courts have accepted an offender's decision to enter a plea of guilty and cooperation with the authorities as demonstrating contrition.

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: R v Adler [2005] NSWSC 274, [48]; R v Hall (No 2) [2005] NSWSC 890, [109]. In particular, 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.

Similarly, in R v Lam [2005] VSC 98, 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.

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.

See also: Australian Competition and Consumer Commission v Rana [2008] FCA 374, [63]; R v Cassidy [2005] NSWSC 410, [43].

Note: The decision of an offender to enter a plea of not guilty does not preclude a sentencing court from finding that the offender has shown contrition or remorse.[2] In R v Ronen [2005] NSWSC 991, the offenders were convicted of conspiring to defraud the Commonwealth. Justice Whealy stated at [95]:

I make it clear that the offenders were perfectly entitled to plead not guilty to the charges in the indictment. Each was perfectly entitled to take that course and to conduct a vigorous defence in relation to the charges. This cannot of course lead to any increase in the sentence that should be imposed upon them. It has the consequence however, that none of the offenders is entitled to the discount that, for example, an early plea of guilty would have otherwise earned. The only relevance of these matters for the present exercise is whether the offenders are entitled to some leniency arising out of the fact that contrition has now been demonstrated. In my view the presence of contrition, although it has occurred late in the piece, is a matter that can and should be taken into account in favour of each offender.

See further: Guilty Pleas

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Cooperation

Contrition may be shown by an offender’s assistance or cooperation with the authorities. In Director of Public Prosecutions (Cth) v AB [2006] SASC 84, [34], Perry J (with whom Nyland and Layton JJ agreed) 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 encourage 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.

See further: Cooperation

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Footnotes

[1] Richard Fox and Arie Freiberg, Sentencing: State and Federal Law in Victoria (2nd ed, 1999) [3.802]; R v Rivkin [2004] NSWCCA 7, [118].

[2] Richard Fox and Arie Freiberg, Sentencing: State and Federal Law in Victoria (2nd ed, 1999) [3.802]; Kate Warner, Sentencing in Tasmania (2nd ed, 2002) [3.602].