Abstract

This article critically examines the rationales for the well-settled principle in sentencing law that an offender’s remorse is to be treated as a mitigating factor. Four basic types of rationale are examined: remorse makes punishment redundant; offering mitigation can induce remorse; remorse should be rewarded with mitigation; and remorse should be recognised by mitigation. The first three rationales each suffer from certain weaknesses or limitations, and are argued to be not as persuasive as the fourth. The article then considers, and rejects, two arguments against remorse as a mitigating factor in sentencing: that the crime, not the offender, is the focus of punishment; and that the truly remorseful offender would not ask for mitigation. The article concludes with a brief consideration of whether a lack of remorse should be an aggravating factor