When ‘I did it’ is not enough: content analysis of remorse in sentencing remarks

Abstract

ABSTRACT Offender remorse is recognised in many legal jurisdictions as a factor that leads to mitigation of sentence. However, judges’ practice with regard to findings of remorse has been the subject of limited scholarly inquiry. We coded 262 sentencing remarks from the higher courts in South Australia using content analysis, to examine the frequency in which judges mentioned various pieces of evidence for remorse, the sources of evidence used and aspects of sentencing in which remorse was mentioned. Judges discussed remorse most frequently in relation to total sentence length and less frequently in relation to non-parole periods. There were no particular sources of evidence that judges used more frequently in their findings about remorse. Guilty pleas were frequent in those cases in which judges found remorse to be present, but guilty pleas were infrequent in those cases in which judges found remorse to be absent or not under consideration. Accepting responsibility, seeking help in relation to offending and making apologies appeared to be influential in finding remorse to be present, and lack of guilty plea appeared influential in finding against remorse. In order for judges to find that a defendant is remorseful, it may be important for a defendant to plead guilty and to show additional indications of remorse.