Appeals Against Sentence Heard In Supreme Court

Press, Volume XC, Issue 27445, 3 September 1954, Page 9

Appeals Against Sentence Heard In Supreme Court

. The community 'is concerned at the number of crimes of dishonesty in this city. There must , also be concern at the crop of appeals which this Court has to hear. It seems to have become accepted by any prisoner who enters Paparua Prison that he should appeal against his sentence as he would have a 50-50 chance of getting away with it,” said the Crown Prosecutor (Mr A. W. Brown) when the fimt of five appeals against sentence caine before Mr Justice Adams in the Supreme Court yesterday. His Honour said it had to be remembered that a great many of the appeals now coming before the Supremie Court would formerly have gone to the Court of Appeal as appeals from the Supreme Court. Mr Brown said there had been a steady increase in the number of appeals before his Honour came to Christchurch. Since the Summary Jurisdiction Act was passed, the increase had been noticeable. Appeal Adjourned An appeal by Claude William Cunneen, aged 36, a labourer, against the sentence of six months’ imprisonment imposed on him in the Magistrate’s Court on two charges of false pretences, was adjourned' until Monday morning so that the views of Dr. J. D. Hunter, superintendent of the Sunnyside Mental Hospital, could be obtained. Mr J. .G. Leggat, who appeared for Cunneen,, said there was not much in the prisoner’s background and record to recommend him to the indulgence of the Court. The crimes had an element of meanness which was difficult to excuse. He obtained 35s from each of two women by falsely representing that he had a house which they could rent. Counsel submitted that the Magistrate was so impressed with the quality of the acts that he gave undue weight to that factor and did not give full consideration to the smallness of the sums involved. The prisoner was of feeble mentality and Unable to compete on equal terms with other members of the community. He was dealt with severely without the prospect of the punishment achieving a useful end. Mr Brown said that the prisoner had been before the Courts on two previous occasions. The offences were despicable. The amount stolen did not make any difference to the offence at all. It was still theft whether the sum stolen was Id or £lOOO. At the request of his Honour, the District Probation Officer (Mr D. S. Aitken) called Dr. H. T. Knights to give evidence.

Dr. Knights said he was Deputy Medical Officer of Health in Christchurch. From his knowledge gained of Cunneen’s life, his flagrant and* expansive lying, his easily detected deceit, and his general irresponsibility he had come to the” conclusion that Cunneen was the victim of a mental defect. His detention in prison did not seem to benefit him and his detention in a mental institution might be the solution. His Honour said that 'what Dr. Knights had said in evidence represented what was in his own mind after reading the reports on the prisoner. “I feel we are possibly dealing with a man as a criminal when we should be dealing with him in a different way,” said his Honour. “Of course, I cannot send him to a mental institution. If he was prepared to go as a voluntary boarder I could do something to bring it about. I could grant him probation on the condition that he enters a mental hospital as a voluntary boarder. He would, of course, be free to leave at any time. There might be practical difficulties. The prisoner also has a physical discability. There is a chronic heart condition.” His Honour then adjourned the case until Monday for Dr. Hunter’s view to be obtained on Cunneen’s being admitted to the mental hospital as a voluntary boarder. Sentence Reduced John Leonard Moody, aged 40, a labourer, again appeared before the Court in an appeal against the sentence of a total of six months in prison, imposed in the Magistrate s Court on July 28, on two charges of theft of motor vehicle wheels. He was represented by Mr H. W. Thompson. His Honour said that both Counsel were aware of the mistake that came into his mind when the appeal was previously before the Court. He then thought a sentence of six months’ imprisonment appropriate, but he had been under the erroneous impression that Moody had been sentenced by the Magistrate to 12 months in prison. He purported to allow the appeal by making the two sentences of six months concurrent, which they, in fact, already were.

Mr Thompson made submissions in support of the appeal, and Mr Brown contended that the sentence should stand.

“I feel I have put myself in an unfortunate position in this case,” said his Honour. “However, the judgment previously delivered has not been finally entered. I thought on the previous occasion that I was allowing the appeal to the extent of one half. It appears that I communicated my misapprehention to counsel for the defence and it may have caused him to modify to some extent the views he put before me and to present his case less strongly. I feel that if •! do not make some concession to the appellant

it may be felt that the Court has acted unfairly.” His Honour allowed the appeal, and made the sentence one of four months’ imprisonment on each of the two charges, the sentences to be concurrent—a total of four months in prison. Admitted to Probation His Honour allowed an appeal by Thomas David Keith Sherlock, aged 23, a car dealer (Mr J. G. Leggat), against the sentence of 18 months’ reformative detention imposed on him in the Magistrate’s Court on a charge of the theft of £ 125 by failing to account for it. His Honour directed that Sherlock be released on probation for three years, a special condition being that he makes restitution of £ 125 in weekly instalments of not less than £l. His Honour said that Sherlock was sent to Borstal for two years when he was 18. There might have bden good reason for that sentence, but he felt that some other alternative might have been better. Mr Leggat was correct in pointing out that the prisoner had never been out in society'under supervision and given that opportunity of being helped to become a useful citizen. Though Sherlock might have richly deserved the punishment he got, his Honour felt it was not likely to be of much value from a reformative point of view, as would a probationary period, which would help him to mend his ways and settle down to his trade of panelbeater.

Last Chance Given Joseph Nathan, aged 24, a labourer, appealed against the sentence of 12 months in prison, imposed by Mr Raymond Ferner, S.M., in the Magistrate’s Court, on two charges of theft. The appeal was allowed. Nathan was released on probation for three years,, special conditions being that he take out a prohibition order and keep it in force for three years, and that he abstain altogether from the consumption of alcoholic liquor or drugs during that period. The Crown Prosecutor (Mr A. W. Brown) said that Nathan’s list was a shocking one. From 1947 onwards; he had been before the Courts as regularly as clockwork. His Honour said that the thing that worried him was that since Nathan was 17 he had scarcely had 6ny liberty at aIL j j

Mrjßrown said that Nathan had been convicted on 25 charges of dishonesty to date and, counsel submitted, the appeal should be dismissed out of hand.

Nathan, who appeared on his own behalf, said he was released from Paparua Prison in July and was faced with the fairly stiff problem of settling in Christchurch, a strange city to him. He managed to secure a job on the railways, but was offered a better one in the country. After he left the railways and was waiting to go to the country he spent a whole day drinking and then agreed to the proposition put to him by the other man that they break into a bach and take the property. He hid when the other man came the following morning with a carrier to pick up the property. The man came a third time unexpectedly to look for him and he then agreed to go with him and take the property to the other man’s home.

The District Probation Officer (Mr D. S. Aitken) said, from the witness box, that if Nathan was given a chance he would try to help him. Nathan had had a fright this time and might behave better in future. . His Honour said it did seem that Nathan had been a somewhat unwilling party to the offences. What had impressed his Honour was that since Nathan was first before the Court in January, 1947, when he was 17, he had spent almost the whole of his time in prison. Were it not for the fact that Nathan had allowed himself to be persuaded to commit the present offences while he was under the influence of liquor he would have suspected him to be hopelessly incorrigible. It would be a particularly difficult process for Nathan to settle to ordinary civil life after bls release from prison for he had never been long enough at liberty to have much experience of it. “You may take it for granted, Nathan, that this is the last occasion a Court will show you any mercy. I have decided to release you on probation not because vou deserve it. but because it seems the last hope of getting you to take your place in society as a useful citizen. If it fails, you will have to resign yourself to the fact that you will go through life as a gaolbird. I think that if such supervision had been available to you when you first came out of prison you might have be.en saved from your criminal career,” said his Honour. “I am following a very exceptional course and I am doing it for an exceptional reason.” Appeal Dismissed Geoffrey Brian Mitchell, aged 23, appealed against the sentence of two years’ reformative detention imposed by Mr Raymond Ferner, S.M.. in the Magistrate's Court on two charges of theft.

The appeal was dismissed. His Honour said that Mitchell and a companion broke the window of a car and stole goods from the car. Then they entered a hotel room where a man was sleeping and searched for a substantial sum of money they thought was there. Mitchell was put on probation three and a half years ago in Wellington for theft and before his term was up he was again before the Court for the unlawful conversion of a car and was put on probation for two years. Within this second period he was again before the Court for the unlawful conversion of a car. He was not punished for that offence, but was given six months’ imprisonment with hard labour on the original charge. On bis release from gaol he joined another man in committing these two offences.

“TWs is the converse of the previous case, where the man had no opportunity in civil life,” said his Honour. "This man, on the contrary, has been at liberty nearly all the time and has had the benefit of supervision by the Probation Officer for four years. The only proper way seems to deal with him as the Magistrate did in sentencing him to two years’ reformative detention and I would not dream of interfering with It.”