Brzozowski v R [2023] NSWCCA 129

Brzozowski v R [2023] NSWCCA 129 · Read the judgment on AustLII

Catchwords: Sentencing – remorse – remorse distinguished from regret and contrition – ecclesiastical law

The CCA has drawn out the fine distinctions between regret about consequences, and remorse as to the original offending which led to those consequences – and held that it is only the latter which can result in a finding leading to mitigation of a sentence for the purpose of s 21A(3)(i).

The applicant pleaded guilty to four offences of possessing firearms. There were also eight counts to be sentenced on the basis of a s 166 certificate (i.e. the sentencing judge was to sentence on those counts as though he or she was a Magistrate) also mostly relating to firearms and weapons, and another 12 counts on a collection of Forms 1 covering a range of topics including possession of firearm parts. In the District Court the applicant was sentenced to 4 years and 8 months, with a non-parole period of 3 years.

He sought to appeal his sentence on the basis that the sentencing judge had erred by finding that there was no evidence of remorse.

The applicant had given evidence on sentence. He asserted that the firearms were given to him by a friend to hold, and that friend had subsequently died. He acknowledged in his evidence that what he had regretted taking the firearms and said he should have taken “more appropriate action” in relation to the various firearms and firearms parts.

The CCA (Rothman J; Simpson AJA agreeing with additional reasons, Cavanagh J agreeing with both) dismissed the appeal.

Each of the judgments centred the analysis on s 21A(3)(i) of the Sentencing Act, which provides that remorse is a mitigating factor on sentence, but only if the offender has provided evidence that they have accepted responsibility for their actions, and acknowledged any injury, loss, or damage caused.

Rothman J observed that the Sentencing Act does not define remorse. It would be possible for the offender to provide evidence that they have accepted responsibility and acknowledged and injury, loss or damage, and yet still not receive the benefit of a finding of remorse in mitigation of their sentence (at [52]). Acceptance of responsibility is a significantly different concept to remorse. An offender may have committed an offence and acknowledge responsibility for it, but take they view that they would do it again if faced with the same circumstances, and so be wholly lacking in contrition (at [55]). There is a difference in principle between regret for the consequences of one’s actions, and contrition for that conduct – a difference which was derived, originally, from ecclesiastical law. Remorse for this purpose is contrition or shame at the commission of the offence, not its consequences, and it is this kind of contrition or remorse (that is, for having committed the offence) which is to be taken into account as a mitigating factor on sentence (at [56]-[57]). That is, there is a distinction to be drawn between regret as to the commission of the offence, or regret as to the consequences, and the kind of regret that is equivalent to remorse is a deep regret at the commission of the offence, rather than a regret as to its consequences (at [58]). This requires establishing deep regret and shame at the commission of the offence itself, not merely regret that something was not done which would have avoided prosecution (at [61]).

In Simpson AJA’s judgment, her Honour similarly considered that the sentencing judge had found that the applicant had accepted responsibility for his conduct, but that this was a finding different from one about remorse. Apart from the plea of guilty there was little to indicate that the applicant, in a genuine sense, accepted responsibility for his conduct – and more than merely a plea of guilty is required for such a finding. The applicant’s statement of regret in his evidence did not convey a genuine acceptance of responsibility, given he continued to maintain that he had possession of the firearms and firearm parts out of a misguided act of kindness to a now-deceased friend (at [12]).

In all the circumstances the sentencing judge was not in error in declining to make a finding of remorse, and the appeal was dismissed.

It seems likely that practitioners (not to mention offenders) will find it difficult to apply these distinctions in practice: not discussed by the Court was the reality that many offenders are unlikely to be so articulate as to be able draw distinctions between regret as to consequences, and contrition as to committing the offence – even if that is how they really feel. And very often the only evidence on the topic will come from a Sentencing Assessment Report, which only ever has very limited detail. Nevertheless, practitioners hoping for a finding of remorse on sentence may need ensure that there is increased focus on whether offenders are sorry about having committed the offence, or only the consequences of that offence.