CRIME AND PUNISHMENT

Auckland Star, Volume LIX, Issue 31, 7 February 1928, Page 9

CRIME AND PUNISHMENT

A JUDGE'S DUTY. MR. JUSTICE REED'S ANSWER TO CRITICS. DIFFICULT CASES. Crime and punishment, the functions of judge and jury, and the rights of newspapers in regard to public comment, were amongst the subjects dealt with by Mr. Justice Reed in his address to t he Grand Jury at the opening of the criminal sessions in the Supreme Court to-day.

The object ever to be aimed at. said his Honor, was the suppression of crime. At one time it was thought that this could only be effected by the infliction of gevere'penalties. Tlie death sentence was imposed for crimes that nowadays would, in many cases, be met by admitting the offender to probation. As a deterrent it was a complete failure; judges and juries seized upon hte slightest pretext to find a prisoner not guilty. As the brutality and savagery of the middle ages gave way to an increasing humanitarianism, acquittals upon purely technical points, not going into the merits of the matter, became more and more common, until the death sentence, except for extreme cases of violence, was jbolished. Students of criminology had discarded entirely the view that severe penalties were essential to the suppression of crime. Many people, indeed, thought that in the reaction, tho pendulum had swung too far over the other v/av, and that we treated our criminals with too great leniency. This, however, was not the view of those who had devoted time and attention to a consideration of the problem.

The Modern Ideal. The old Mosaic law of "an eye for aft eye and a tooth for a tooth," was finally abandoned, continued his Honor. Revenge by society upon the offender against its laws was no longer the basis of punishment. The modem view was to endeavour to reform the offender whilst nof neglecting the important considertion of deterring others from committing like offences. The nature or degree of punishment must therefore be regulated by two considerations, first the reform of the individual, and secondly the necessity of deterring others from like offences. One might be satisfkd that the offender, if treated leniently, or admitted to probation, would not. again offend, but it might be that the crime was of such a nature that punishment must be inflicted, or it might be a class of crime that was on the increase. In that case it might b© necessary, in the interests of the public, to disregard the detrimental effect of imprisonment upon the individual, and to inflict such a degree of punishment as might be a deterrent to others. There could not be an inflexible circumstances, would not yield to special circumstances. Sometimes those circumstances were such that to follow the general rule would be to sacrifice common sense to a pedantic adherjnes to a rule or practice. It was;that class of case that, without a complete knowledge of the circumstances, caused uninformed persons to criticise what they were supposed to regard as the inconsistency of sentences.

Value of Responsible Criticism. 'It is quite right and proper," said his Honor, "that the sentences of a judge should be subject to the criticism of newspapers. It would be an unhealthy state of affairs if the judge's sentence or judgment should l>e sacrosanct. Leading newspapers, with a sense of the responsibility attaching to the views they express, seldom wantonly criticise sentences, knowing full well "that they cannot be in possession of all that is known to the judge, but there have been exceptions. I have had experience of the criticism of alleged inconsistency in my sentences." His Honor went on to refer to a case ill which he granted probation to a sharebroker who had misappropriated £150 entrusted to him to invest. As a rule breaches of trust were visited by a sentence of imprisonment, but in this case representations were made by the probation officer which induced him, with some doubt, to grant probation. He imposed terms requiring complete restitution and payment of all costs to which the country had been put. At the same session some men "ere Charged with breaking and entering. One of them was convicted of receiving ho goods knowing them to have been stolen. The stolen goods recovered from J»s possession were valued at about £150. Ine police report showed that there had <-en a series of cases of breaking and fntering in the city, and that the prisoner was the head of a gang of neves who were known to be responsible for these crimes. "I sentenced him to two years imprisonment," said his nonor. "A local paper of some standing onimented on the discrepancy in the sentences,- and actually used the argument that in each case the amount inohed was the same, and that in each case there had been restitution. Criticdoe-; no pood, and even jorksharm amongst unthinking readers <<= tending to throw doubt on the impartiality of the Bench." (( Most Difficult Class of Case." The most difficult class of case to J-Tnn W at t0 c '° with," continued his V-nor, is that of a person found guiltv i causing the death of another bv the vin £ of a motor car. I have ea dozens of these cases, and it is a * S8 ° case in which juries are verv aWi I convicting. As a rule the .ijf , offender is a decent man, of ?ood vS e \ an , d j " ries are loth 10 a ffient may result in imprison-

ni „" a ,, i ne . i tlme t], e charge was laid as rot ' and J urips simply would .J 110 la , w Wns altcred > and rausinn S i now IIG laid of negligently causing death. Although this was, in rhar^'i^f 11 ghter ' the wordi »? of the ; did not sound so formidable to a * mOrC cony ictions were that v, CVen noxv iie was convinced in m o r! aVy ' entences wo,lld only result finnrJc ac^uitta!s - "Everyone desires to , _ ss the careless and negligent: Paid llis Honor, "1)111 I am •}" I" t!l «t the most effective method ■^t^ ng 'l 0 ,s 1!ot lj - v im Posing a lieavv n dot 6 '* Ut fllSt liy illcrease d vigilance ■■ J it ® ctln &'' and the infliction of . punishment for negligent . ln g in the streets, whether resulting n accident or not, and secondly bv certainty of conviction when, through i o 'gence, a fatal accident did happen. r ®? ar ds the first one, magistrates • doing excellent work in teaching i onsts to drive v.ith rare; as regards I *? cond > class that comes before - supreme Court, if convictions could i*:,,™" I ni rvory uhrrc fata ' n- 1S 1 11 ''-ed to be due to ° •=* ncp -' K v c'j I'iis wav to

teach carefulness in the handling of mo 01 cars. A certainty of conviction is a tar greater deterrent than an occasional exemplary sentence. Juries had to be educated to trusting the judges not to impose excessive penalties. Once that iis achieved convictions will, I feel assured, more readily follow." "Spectacular" Cases. An added difficulty arose when the case was of a spectacular nature. The case was written up by the newspapers, and the public were inflamed by the possibly alleged callousness of the offender. When the case came to trial, much that had been sa_id and suggested was incapable of proof. This created a difficulty in the I°j members of the jury, who probablj had read the reports, and expected to hear proof of inexcusable conduct ou tho part of the accused. The Crown failing to bring such proof—which never existed—the effect upon the minds of the jury was to excite sympathy with the accused to the extent even of acquitting him fOl fear of what they consider might, be a harsh sentence. Last session there was an instance of this. A young man was charged with manslaughter in circumstances which, if the story told in the newspapers was to be believed, was as gross and callous u case as could be conceived. The effect of tho sworn evidence upon the jury was that they absolutely declined to convict of manslaughter, and only after nearly five hours' retirement agreed to a conviction for negligent driving, and only that, on being satisfied that the offence would be met with a fine. "Although judges fix the penalities," said his Honor, juries have a most effective way of regulating the scale by refusing to convict when they consider sentences are excessive." "No doubt this is very wrong, but the fact must be recognised that a judge is not entirely a free agent in the matter of imposing penalties, and must defer to a considerable extent to the views of the juries who try the cases. It appears to me to be the outstanding duty of a judge ro endeavour to secure that, whilst the innocent shall not be convicted, the guilty shall not escape. If, through a stiff-necked adherence to the view that convicted offenders must be severely punished, juries decline to convict, then a judge is losing sight of what I say is his outstanding duty to the public— to so act in his office that, at the least, obstacles should not be placed in the way of bringing offenders to justice."

A Judge's Difficulties. In conclusion, his Honor said a judge could not join in a newspaper controversy as to his sentences. He made no apoiogy, therefore, for endeavouring, in a general way, to place before the public some of the difficulties that a judge was faced with in endeavouring to carry out his duty to the best of his ability. He had never heard it suggested that, so far as New Zealand judges were concerned, they were actuated by anything but a sincere desire to do their duty. If that be conceded, and it was admitted, as it must be, that a judge had far greater experience in dealing with criminals, than any of those who adversely commented upon some isolated sentence, and was probably in possession of information bearing 011 such a case which was unknown to the general public, criticism should not be indulged in lightly. As most criticisms were directed against the leniency of sentences, it might be that the members of juries, reading such criticism, and fearing the effect of it upon a judge might be that a heavy penalty would be imposed, might be thereby induced to acquit, a result hardly contemplated or desired by the critic. Experience proved that fear of the imposition of what, a jury might regard as a heavy penalty had more thin once resulted in a verdict of not guiltv. Injudicious criticism might therefore 'often assist in defeating justice.