“Sometimes the ‘sorry’ expressed by offenders is dismissed by sentencing judges as being nothing more than, ‘I’m sorry…that I was caught’. That’s a self-pitying sorry. It is better left unsaid,” says legal columnist HUGH SELBY.

HERE’S a song every reader has heard. The lyrics that we all know well include:

What have I got to do to make you love me? 

What have I got to do to make you care? 

What do I do when lightning strikes me? 

And I wake to find that you’re not there? 

What do I do to make you want me? 

What have I got to do to be heard? 

What do I say when it’s all over? 

And sorry seems to be the hardest word. 

It’s sad, so sad. It’s a sad, sad situation. 

And it’s getting more and more absurd. 

It’s sad, so sad. Why can’t we talk it over?

In his song Elton John has grasped being sorry in our world, grasped and explored how elusive it is.

Take a moment now to select your preferred version of this song from the links below. Play while you read.

You can see and hear the great man on a big piano here 

There’s an edgier version by Joe Cocker, with Deric Dyer on sax, here  and for a duet for the ages, take Elton and KD Lang together here.

Too many lawyers in insurance and injury work have confused “being sorry” with taking the blame, as it being an admission of being the cause of someone else’s distress. It isn’t.

Sometimes the “sorry” expressed by offenders in our criminal justice system is dismissed by sentencing judges as being nothing more than, “I’m sorry…that I was caught”. That’s a self-pitying sorry. It is better left unsaid.

Usually, though, the bare “sorry” is an explicit recognition that someone else has been harmed, inconvenienced, is experiencing physical or mental distress. The “recognition” encompassed in “I am sorry” is a kindness and a validation to the recipient. Elton is expressing a sorry that is beyond that.

The next step in the hierarchy of “sorry” is that some legal matters can be solved, or rather reduced in scale, if there is an apology. This requires acceptance of responsibility for the injury done to the recipient.

An apology may be made to an individual or a group.

The individual apology can be seen when the writer or utterer of defamatory remarks can contain the monetary payout by a carefully framed, well-delivered apology. It can also be seen in Circle Sentencing, which is an alternative pathway, outside of traditional “punishment” options, for not too serious criminal offences. The offender offers an apology, which the victim agrees to accept.

The group apology is seen in Prime Minister Rudd’s apology to the stolen generations in February, 2008. He began: “We apologise for the laws and policies of successive parliaments and governments that have inflicted profound grief, suffering and loss on these our fellow Australians…” 

Beyond the apology are “contrition” and “remorse”. Sentencing judges and magistrates are hoping to see signs of this level of personal acceptance of responsibility, both for what the offender did, and the consequences of that act or actions. There must be an expression by the offender of a “deep regret”.

Without such self-awareness and a capacity to feel the harm done to the victim, the notion of “rehabilitation” is empty, because to rehabilitate is to make good, to restore, to give value – none of which are possible if the offender lacks the motivation to make any changes to their approach to life and community.

But as Elton’s lyrics show, the causes of grief, the scope of regret, and the place for sorry, can be complex, even maze-like, so that the path to follow to a better future is far from clear. “Sorry” comes with so much baggage that its unpicking is difficult, but we must search for it in our criminal justice system.

We won’t always find it; for example, an innocent who is wrongly convicted cannot apologise, cannot express contrition or remorse.

Stop the music. Pick one of the other performances. You will notice that the same words carry distinctively different messages when borne by a different musical treatment and a different voice.

So now you understand how the same facts lead to different sentencing outcomes because the attributes of offenders (singers) change, and the underlying atmosphere (the musical performance) also changes from one version to another.

What’s more, those who sentence offenders have innate preferences for one singing voice over another, for one instrument over another. Just as we do.

When Elton sang: “What have I got to do to be heard? What do I say when it’s all over?” he was asking the questions that every good courtroom advocate is asking every time they go into a court or tribunal. An answer in time is a win.

I can answer his closing refrain, “Why can’t we talk it over?” 

The answer, my friends, is blowing in the wind. It’s a question and answer to be repeated every day, with or without Bob Dylan.

How about listening again? You’ll be so glad you did.

Hugh Selby is a recently retired barrister who enjoyed appearing in criminal jury trials and teaching about them.

News all day, every day at CityNews.com.au.