Mr Tim Marsh
Biography:
Tim Marsh is a criminal barrister with a strong practice in mental impairment and disability law. His work at first instance and on appeal in this area have helped clarify and reshape how the Victorian Courts treat offenders with mental illnesses. In 2020, his advocacy in the decision of Brown v The Queen resulted in allowing the courts to take personality disorders into account in sentencing. He was counsel in the landmark case of DPP v Walters, which saw the controversial ‘baseline sentencing’ reforms overturned by the Court of Appeal. In 2021, he successfully appeared before a full bench of the Court of Appeal in a decision of national significance for the sentencing of aboriginal offenders (DPP v Hermann [2021]). Tim regularly appears in serious homicide cases, with a particular focus in the intersection of mental health and criminal law. He is the current President of the Victorian committee of ANZAPPL, a past member of the Victorian Bar’s Wellbeing Committee and sits on the editorial committee of the Judicial College of Victoria’s Sentencing Manual.
Abstract:
Criminal sentencing attaches particular significance to the presence of remorse when sentencing offenders. Courts have repeatedly affirmed that remorse is relevant to the assessment of an offender’s prospects of rehabilitation, and by extension to the need for a sentence to specifically deter an offender.
While it is clear that Courts have uncritically accepted the importance of remorse for this purpose, it is far less clear what this position is based on. Indeed, for a factor that looms so large in the sentencing synthesis, it remains unclear how remorse is measured, and by whom it is best assessed. Although it is commonly held that genuine remorse for wrongdoing demonstrates an increased likelihood of rehabilitation the connection between these two propositions is tenuous. In this presentation, the author will argue that a retrospective appreciation of the wrongfulness of conduct is unlikely to be a factor in preventing future offending, and that the absence of remorse cannot be said to negatively impact an offender’s prospects for rehabilitation.
Despite these issues, remorse remains a fascination within the sentencing narrative. The presentation will conclude with an analysis of why remorse continues to exert a powerful pull on the minds of sentencing judges and criminal advocates.