The Press. THURSDAY, JANUARY 10. 1889.

Press, Volume XLVI, Issue 7251, 10 January 1889, Page 4

The Press. THURSDAY, JANUARY 10. 1889.

A case has just occurred at the criminal sittings, which renders it necessary* in our judgment, for the 'public %> consider seriously what is the line to be taken in dealing with first offenders under the Probation Act; The facts of the case, aa opened by the proseouting counsel, and afterwards clearly proved by the evidence laid before the Court, are as follows:—On the second of May last two promissory notes were given by Newby Bros, to Mr. Sopp They became due and were dishonored,. and a writ was served on account of them on Mr. R. N. Nbwbt, one of the brothers. Mr. Joseph Oram Shbppard, late of the City Hotel, would appear to have _ad something to do with the matter. At any rate he war consulted ' by ■ __*, Newby as to arranging for settlement of the action. Shbppabi>; suggested that another promissory note-should be given for £94 16a 3d, this amount including the two original notes and the: costs of the action. Tbe note was aocordingty, by Nbwbt to Sh-ppard to hand to Sopp. . StepAteo;'afterwards told Nbwbt that he could not settle the action with this iaote, and gave him to understand that it was destroyed. In fact Nbwbt had to pay part of the amount in cash, and gave his note for the balance. Sheppard did not, however, destroy the note for £94' 16s 3d, but got it discounted for his own benefit. It became due and was dishonored, and the first that Nbwbt heard of its e_istence was by the service of a writ upon himself for the amount. Upon this being in eviden »c Sheppard was convicted of larceny of the note as a bailee. His counsel applied to have him placed under the provisions of the Probation Act. Mr. Donaldson, the Probation Officer, handed in to the Judge his report in favor of the prisoner, and ulti* mately upon two of his friends coming forward and becoming security to Mr. Nbwbt against any claim being made against him oh the stolen bill, and also undertaking to pay the expenses of the prosecution, Sheppard was admitted to probation' for twelve months. Upon reading, wessat.y t . the,. above facts, the question inevitably What sort of cases we are to understand to be intended to bring under the provisions of the Probation Act? Is it meant that every first offender, whatever may be his merits or demerits, is, as a matter of course, to have the benefit of the provided only; he can secure the prosecut6r against any loss by his crime, and bay the expense of his own -prosecution ? Or, is each case to be examined into on ita merits, and the indulgence of the Act granted or refused, according to the result of the investigation: T The best way to

answer thi*question igto look in tbe first place at the Act itself. The Acis simple enough in its provisions. Ij provides for the appointment by ths Governor of ah official to be called a Probation Officer. He is to have a district assigned fed him, and in the exercise of his official duties he is to have tH 9 powers of a constable and polioe officer His duties are as follows: (1) "to " inquire carefully into the character " and offence of every person arrested for any first oftence, for the purpose «of ascertaining whether the accused 'may be reasonably expected to te. "form without imprisonment,",. and specially, "if satisfied upon investigation " that the best interests of the public " and the offender would be subserved " by placing him upon probation, to " recommend the same to the Court " trying tbe case." So far the Pro. bation Officer. With regard to the Court it: does not appear, we think that tbe recommendation of the officer ia conclusive. The Court, it ii said, " may instead of sentencing "him at once to any punishment " direct that he shall be placed upon "probation in terms" of the let, Upon this reading we apprehend it to be clear that it is not intended by the Act that every first offender shall as a matter of course be admitted to probation. The Probation Officer iii toinquire carefully into the character and offence of every person arrested, and having so done lie is to be satisfied before reporting favorably that the " best interests of the public and* of " the offender will be subserved " by the person being placed - on probation. Nothing we suppose «__ well be clearer. What is to be looked at is, not simply tho criminal antecedents, if there are any, but ; the character in the full sense in which that word is ordinarily used. Ib &c man, the Probation Officer may be supposed to ask himself who is now arrested for a first offence, a man who is likely to benefit by the indulgence of the Act; and not only is the man himself likely to benefit but shall I be acting in the best interests of the publio by recommending t him to the favorable consideration of nthe C6urt ? It will thus be seen that' aa important judicial duty is oa the Probation Officertobeexercisedupoa the merits of every prisoner arretted for a first offence. We cannot forjbpw Asking whether the case we have above summarised has been dealt with consistently with this view of the pfov.. sions of the Act. /

There is no doubt that the bff&ce «f which Shbppabd was found gtiilty ..was a first offence within the meaning of the Act. He had never, that is to say, been previously oharged with-'any indictable offence.. Whether S#_sH>_bd waa also a first offender wifihiri the Act depends iipon tiie oonstruction as j applied, to his case of the "''sprl " offender" in anotner pa*i of tho clause. "Offender" means, says the Act, a person whose previotus oh&r—ster ..has been good, and against whom aa indictment has not beelaid, _o. Upon this.woniing we -fust presumethat, if the report oFihe Probation Officer is to be taken as con* elusive, JJ_ebpa_d then with regard to the offence and hia own penwnality, clearly within )ss> $»• visions of the Adt,7 If, however," as m h_v&B-ggested: abdvis^._ dftctstip|| -is . left to the Court in acting iipon that report, It is impossible not to ask, in view of the facts not long since reported in ' th_ journal, whether the [Probation Officer has exercised . the caution required of him in making up his report ib this case? We think many persons will ba; of opinion that sufficient care _aa not been taken; and tha question then arises—what checkthe* Act. pftjyides against a neglect of this kind ©a thwart of the Probatibii Officer P, Are bound to say that upon this point the not apjaear to us so'explicit as it might be. The case does -crtrend here. Whatever be the report of the Probation Offleer, the Court had before it in any event the whole circumstances of»the case itself, as disclosed ,b_/pse. evidence. Was there,. we must ssk agt»in, in these circumstances anything leading to the belief that it would ba for the best interests of the public, let alone the offender, to place the accused upon probation 1 No hint of the j-ind, we must say, appears upon the evidence. The crime of which Shbppabb was convicted was, to. . speak plainly, a common swindle, ft' bjtd no marks about it of 'an offence committed by aoms ir—-perittuced youth, for instancy, under circuia* stances of peculiar temptation. It _ just one of those tricks with' which ths Police Courts at Home are thoroughly familiar, and the .offenders in which would be' the last persons to whom tha Probation Act would for a tad-vent be thought to apply.- We confess, too, to some sense of discomfort in finding-the indulgence accorded tQ,SHEPPAS_> made to depend ultimately upon to make good the loss the proseoutor. ■ This dots not mean. 3 we nope, that # ?<■_• had been unable to °_ad.;-J6p« I necessary sureties, he would; not have ! obtained the benefit of the Act. 'S__» |'a ruling would virtually amount » making one law fof the rich sd another for the poor. This we are s_t was not the intention of theGduiThe Act indeed gives the Court authority to' require 'payment of the costs of the prosecution, and'-pon the same principle there is n° reason why,' if the accused ' h«* means, he should not also pay what- = ever the prosecutor may have los* by his offence. But it is a difflcolt part of the Act to work out satisfaotorily to the public sense of l va __\ Upon the whole, and having regiw moreover to the difficulties ac__of* lodged by other branches of the".(&«#> we think this Act will contioaiC# require very careful considera-08. We do feel that in the present 3-f >* has been put in operation under c_* cumstanees to whioh it waa '» ot intended to apply.