SUPREME COURT Three Appeals Dismissed By Mr Justice McGregor

Press, Volume XCI, Issue 27638, 20 April 1955, Page 6

SUPREME COURT Three Appeals Dismissed By Mr Justice McGregor

An appeal by Joseph Nathan against the cumulative sentences of six months’ imprisonment on each of two charges of theft, imposed in the Magistrate’s Court, was dismissed by Mr Justice McGregor in the Supreme Court yesterday. Mr J. B.tWeir, who appeared for Nathan, said that the appellant was convicted on August 3, 1954. He appealed shortly afterwards and Mr Justice Adams, impressed by the fact that though Nathan was only 24 he had been in prison almost consistently since he was 17, took the unusual course of admitting him to probation for three years. His Honour warned Nathan what would happen to him if he appeared before the Court again. Unfortunately Nathan did appear again in the Magistrate’s Court on charges of resisting the police and unlawfully converting a motor-vehicle. For these offences he was sentenced to 10 months’ imprisonment. He appealed against the sentence ancK Mr Justice Adams dismissed the appeal in November last year. Nathan Was then brought before the Magistrate again for sentence on the original charges of theft. He was given the same punishment as previously, six months’ imprisonment on each charge, the sentences being cumulative. It was from these sentences that Nathan now appealed. Nathan contended that he had been sentenced three times for the one crime and was aggrieved. Mr Weir submitted that Nathan received a severe sentence for resisting the police and unlawful conversion because of his criminal background. The same applied to the sentences for theft. The Crown Prosecutor (Mr A. W. Brown) said that Nathan had 24 convictions, most of them for serious offences. He did not take advantage of the opportunity given him by Mr Justice Adams and was properly sentenced b ythe Magistrate on the original charges. His Honour said that Nathan apparently had decided to lead a completely anti-social mode of life. He had been sentenced only once on the original charges. “Although I realise that the appellant is now beginning a fairly long period of imprisonment, I think the sentences are just and proper. The appeal is dismissed,” said his Honour. Sentence Reduced Errol Leslie McConchie, aged 32, appealed against his sentence of two years’ imprisonment for indecently assaulting a girl. His Honour quashed this sentence and in lieu of it imposed one of 12 months’ imprisonment. Mr M. G. L. Loughman, counsel for the appellant said that McConchie was convicted on January 27 when he pleaded guilty in the Magistrate’s Court. McConchie was admitted to Sunnyside Mental Hospital on April 1, 1952, probably as a result of matrimonial upset, and was an inmate for 10 months. He said he knew nothing about the offence. He had taken a considerable amount of liquor on the day of the offence. But for the evidence of identification he would not have believed himself capable of such an offence. He had never done anything like it before, -and, counsel submitted, the sentence was unduly

Conchie had been in custody since just after Christmas. The Court might consider admitting McConchie to probation. The Crown Prosecutor (Mr A. W. Brown) said that it was apparently a deliberate offence. McConchie was not so drunk that he could not ride a bicycle. He took the girl to the sandhills and later made off, leaving her in a frightened state. “Punishment is important, not only as far as the prisoner is concerned, but there is the deterrent aspect, which seems to be, forgotten, the emphasis being put on the reformation of a prisoner,” said Mr Brown.

His Honour said it seemed that McConchie should not be at large at the moment because of the mental stress he was suffering. If he were sentenced to corrective training his detention anight be longer than the sentence imposed by the Magistrate—that depended on the Parole Board—but it might be better to have him under supervision. His Honour said it was a difficult matter and he would consider it further before giving his decision in the afternoon.

“In some features this case presents more than the usual difficulties,” said his Honour when the Court resumed in the afternoon. “Owing to domestic differences the appellant was under some emotional strain at the time and that can be taken into account. It is imperative in the public interest that children should be protected. It is in the appellant’s own interests that, to enable him to recover from his mental strain, he should be detained. I had considered whether or not to impose a more or less indeterminate period of detention but in view of the appellant’s age and other factors that would not be altogether satisfactory. I have had fuller reports and more detailed information than had the Magistrate. This is virtually the appellant’s first offence and it does seAn that this offence was out of keeping with his previous character. I propose to quash the sentence imposed by the Magistrate and in lieu thereof impose one of 12 months’ imprisonment.” “Absolute Recklessness” “I have no doubt about this matter. It is a case of absolute recklessness by a young motor-cyclist,” said his Honour dismissing an appeal by Barry John Brownie against his disqualification from driving for six months. Mr B. G. Dingwall, who appeared for the appellant; said that Brownie pleaded guilty in the Magistrate’s Court on February 22 to driving a motor-cycle on Pages road at a speed which might have been dangerous. He was fined £lO. His driver’s licence was cancelled and he was disqualified from holding another for six months. He was appealing against the part of his sentence relating to his driver’s licence. Mr W. R. Lascelles appeared xfor the Christchurch City Council. “This lad of 21 was driving in the city at a speed which at the very least was 60 miles an hour and he had a pillion passenger,” said his Honour after hearing counsel. “It is true that traffic was light and there were no cross intersections over the threequarters of a mile his speed was checked by a traffic officer. But apart from that there are other dangers from excessive speed. His conduct was not only almost suicidal so far as he was concerned, but he also created the highest degree of risk as far as his girl pillion passenger was concerned. I entirely agree with the view taken by the Magistrate that the offence called for a substantial period of disqualification, both in the interests of the appellant and the public generally and as a deterrent to like-minded youths, some of whom seem to think no speed is excessive tand they can travel on the roads as they think fit without regard to their own safety or that of others,” said his Honour.

Dangerous Driving “I regret I am entirely unconvinced by the evidence of the appellant,” said his Honour dismissing an appeal by Albert William Henry Falla, a car salesman, against his conviction by a Magistrate on a charge of driving a car in Linwood avenue in a manner which was or might have been dangerous to others. “I am satisfied that the appellant was driving at a speed which, in the circumstances and approaching an intersection where a car was coming on his right, was too high, I am also satisfied that the appellant was on a part of the road he should not have been when coming on to an intersection. Having regard to his speed and the manner in which he was driving, I consider he was negligent at the time of the impact and that the manner of his driving was dangerous to the public and as a result the accident occurred. The appeal is dismissed,” said his Honour. Mr W. R. Lascelles, for the Christchurch City Council, said that Falla was convicted by the Magistrate on June 1, 1954, and fined £5 and his driver’s licence was suspended for 28 days. About 5 p.m. on January 13, 1954, a man Firman was driving

north-east along Dyers road and he slowed down as he approached the intersection with Linwood avenue. Going south-east along Linwood avenue were three cars about 50 yards apart. Falla was travelling southeast in Linwood avenue and overtook the rear one of the three cars about 100 yards from the intersection. He then went on, presumably to pass the others and was so concerned with passing them at about 40 miles an hour that he did not see Firman’s car approaching from his right and to which he should have given way as it was going straight through. There was a collision on the intersection. The city council submitted that in the circumstances, overtaking the cars at the intersection clearly established a case of driving in a manner dangerous to the public. Harold Joseph Leon Voyce, a fitter, Kenneth Anthony Firman, a warehouseman; and Roy Wilfred Wilson, a traffic officer, gave evidence on the lines of counsel’s outline of the case. Mr A. K. Archer, who appeared for Falla, said this was one of those cases where there was a distinct contradiction in the evidence. Falla would say he was driving home alpng Linwood avenue at 30 to 33 miles an hour. About a quarter of a mile from the scene of the accident he was driving behind a car which had fan advertising sticker on the rear window. This car gave an indication that it was going to turn left at Dyers road. Falla pulled out to have an uninterrupted view on his right. He saw the ear coming from Dyers road and slowed down for it. Falla then saw the driver of the car giving what he took to be a sign that it was turning right, so Falla went on. He next saw that the other car was coming out on to the intersection. He tried to pull up but it was too late and there was an impact. Mr Archer said that the three passengers in Falla’s car gave evidence for the defence in the Lower Court but they were not available for the appeal. Their evidence corroborated Falla’s evidence. If Falla mistakenly relied on Firman’s signal it would be wrong to convict him of dangerous driving, though he might have been guilty of a lesser offence. Falla gave evidence on the lines of his counsel’s statement of the defence. His Honour said it was not the type of collision likely to take place without some negligence on the part of one or other of the drivers. He accepted the evidence of the independent witness, Voyce, which corroborated the evidence of Firman.

DECREE NISI GRANTED

Verdun Firth Anderton (Mr M. G. L. Loughnan) was granted a decree nisi when he petitioned in the Supreme Court yesterday, before Mr Justice McGregor, for divorce from Freda Gertrude Anderton on the ground of separation The petition was undefended. X