As the majority stated in R v Storey,[15] 'the sentencing decision is commonly no less important to the offender than the decision about guilt or innocence'. To this I add that individual sentencing decisions are often of great interest to the general public and therefore to the media, which also places considerable significance on patterns of sentencing generally. Indeed, nothing the courts do has greater impact upon the respect, or lack of it, in which the criminal justice system is held by the public. It is very much in the interest of that system that both aggravating and mitigating circumstances are demonstrably given appropriate significance in the exercise of the sentencing discretion.
The sentencing process must therefore be informed by the intellectual rigour to which Redlich JA and Curtain AJA refer ... .[16] This is certainly no less true where remorse is raised as a circumstance of mitigation. Where remorse is relied upon by an offender, and its existence or extent is challenged by the prosecution, the burden of proving its existence or extent falls upon that offender.
It is true, as Redlich JA and Curtain AJA state,[17] that '[t]he common law has long recognised the sentencing principle that a plea of guilty is an expression of real contrition'. That principle was established, however, at a time when the offender would almost certainly not know, when the decision to plead was made, whether it would result in a discernible discount from the sentence which would otherwise be imposed. Now, given the role of s 6AAA of the Sentencing Act 1991, that discount will always be known; and, because it is known that it will be known, there is an incentive in the guilty to plead guilty - if only to attract the discount which, as the judgments in this case make clear, must be allowed for its utilitarian benefit.
It follows that such a plea may have little if any component of remorse. Yet remorse is frequently put forward as a mitigating circumstance in the expectation that the sentencing judge will simply accept that, because a plea of guilty has been entered, remorse must be present. That expectation ought not to be encouraged.
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 indicates realistic prospects of rehabilitation and a reduced 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 very substantial reduction in what would otherwise be an appropriate sentence - is very likely due.