A discount for remorse (usually of the order of about 5-10%) can be available for Restorative Justice with the victim of the offending. However, it requires both parties to be willing to participate and it is not uncommon that a victim does not wish to participate in the process.

Is a discount for remorse still available if the defendant is willing to participate but the complainant is not? This question was recently dealt with in Pene v R [2023] NZHC 1234 in which Radich J held at [27] that (emphasis added):

I recognise that remorse is a separate mitigating factor that may be taken into account where there is something more than the bare acceptance of responsibility inherent in the guilty plea. I do not consider that a willingness to engage in restorative justice is enough in itself to justify a separate discount for remorse when unbundled from other genuine expressions.

The footnote to this passage sets out examples of genuine expressions of remorse (fn 26) that would justify a discrete discount:-

Rowles v R [2016] NZCA 208 at [18]: genuine expression of accompanied by payment of reparation = discount of eight per cent;

A v R [2018] NZHC 543: remorse demonstrated thorough an “utmost effort” to participate in restorative justice, acceptance of offending, engagement with counselling, early guilty plea and efforts to combat alcohol use = discount of 16 per cent.

C v R [2022] NZHC 1807: remorse demonstrated by tangible changes to lifestyle, including ceasing the use of intoxicating substances, engagement with counselling, offer to participate in restorative justice, apology to victim, and offer of emotional harm repayment – discount of eight per cent.

The reasoning in Pene was followed by Woolford J in Johnson v Police [2023] NZHC 3302 at [16] and Hood J in Blackbourn v Police [2023] NZHC 3271 at [24].