SUPREME COURT

Press, Volume LXXXIX, Issue 27226, 18 December 1953, Page 14

SUPREME COURT

APPEAL AGAINST SENTENCE MAGISTRATE UPHELD An appeal by Eric Claude Smiley, aged 33, a painter, against the sentence of 18 months’* imprisonment, imposed on him in the Magistrate’s Court on a charge of breaking, entering and theft, was dismissed by Mr Justice McGregor in the Supreme Court yesterday. Mr J. A. Bretherton, counsel for Smiley, said that the prisoner was sentenced in the Magistrate’s Court on November 19 and the appeal was on the ground that the sentence was excessive. The prisoner had a list of previous convictions and the report of the Probation Officer was not encouraging. The background of the prisoner’s early life was against him. He was of weak intellectual capacity and emotionally unstable. That should be taken into consideration. Many of the prisoner’s previous convictions were for minor offences and he had only one ‘ previously for breaking, entering and theft.

The offence to which the appeal related was more a stupid and irresponsible one rather than the planned act of a criminal, said Mr Bretherton. The value of the goods stolen was about £5O. The sentence imposed by the Magistrate was unlikely to produce any reformation in the prisoner. If he was given a period of reformative detention he could be trained under proper supervision and so have the chance of making himself a reasonably good citizen. His Honour said that Smiley had been convicted about 18 times. At an early age he came under the care of the Child Welfare Department. He had had the benefits of probation but did not react favourably. He had also been in Borstal institutions and apparently they were not able to do much for him. He had also had reformative detention, and imprisonment. The present offence was committed not long after he was released from prison.

“There is only one sentence the Court could pass and that is imprisonment and I do not consider the sentence imposed by the Magistrate is in any - way excessive. The appeal is dismissed,” said his Honour.

VACANT POSSESSION OF HOUSE

ORDER MADE IN FAVOUR OF WIFE

An application, under the Married Women’s Property Act, by Kathleen Higgs, a married woman, for an order that her husband, Frederick Higgs, a labourer, give her. vacant possession of the house and land at 22 Humbolt street, was granted by Mr Justice McGregor in the Supreme Court yesterday. Mr B. G. Dingwall, who appeared for Mrs Higgs, said that, the plaintiff and -her husband were parties to a separation order made by Mr Rex, C. Abernethy, S.M., in the Magistrate’s Court on April 20, 1952. She wanted to get her husband out of the property because he was drinking heavily and was a source of annoyance, but she. could not have the house to herself unless she got an order from the Supreme Court. Her claim was a stronger one than was usual, for she had a legal half interest in the property, the husband having the other half interest. His Honour made an order that Mrs Higgs be given vacant possession of the property, subject to her paying all outgoings on the property, and with liberty for either party t o apply to the Court at any time to vary or review the order. The defendant was ordered to pay his wife’s costs. DECREES NISI GRANTED A decree nisi, on the grounds stated, was granted the petitioner in each of the following undefended petitions for divorce heard before Mr Justice McGregor in the Supreme Court yesterday:— Separation.—Fred Wilkinson Lowe •(Mr A. H. Cavell) v. Olga Margaret Lowe; Dorothy Sylvia Maguire (Mr A K. Archer) v. Colin Maxwell Maguire. Adultery.—William Lauder (Mr H. M. S. Dawson) v. Zeita Marion Lauder; Murray Gladstone Thomson (Mr P.'H. T. Alpers) v. Margaret Mina Acland Thomson. Restitution Order Made Lister Hilda Coffins (Mr R. A. Young) petitioned against Mervyn Cedric Coffins for restitution of conjugal rights. An order was made for restitution within 21 days of service of the order. Motion Opposed A motion by the respondent, Leslie Gordon Lukey (Mr B. J. Drake) to have the decree nisi granted the petitioner, his wife, Olive May Lukey, made absolute was opposed by her. Mr E. M. Hay, counsel for Mrs Ldkey, said that the petitioner was granted a decree nisi on June 4, the grounds for divorce being her husband’s adultery. Mrs Lukey was opposing the motion for a decree absolute on the ground that Lukey had not complied with an interim order for the payment of alimony pending suit.

After hearing Mr Drake in support of the motion, his Honour adjourned the motion to the February session of the Court.