LEAVE TO APPEAL REFUSED IN CHRISTCHURCH CASE

Press, Volume XCIX, Issue 29273, 3 August 1960, Page 10

LEAVE TO APPEAL REFUSED IN CHRISTCHURCH CASE

(New Zealand Press Association)

WELLINGTON, August 2. The Court of Appeal this afternoon refused an application for leave to appeal against sentence made by Rubina Elisa Millicent Shirley, aged 64, a widow, of Christchurch, who was sentenced to two years’ imprisonment by Mr Justice Adams in the Supreme Court at Christchurch after being convicted for using an instrument with intent to procure a miscarriage. In the Supreme Court it was alleged that the appellant had performed an operation on a married woman who was living with a man other than her husband. In the Court of Appeal the appellant was represented by Mr B. J. Drake, and Mr R. C. Savage appeared for the Crown. Mr Drake submitted that the trial Judge acted on a wrong principle in imposing what was an excessive sentence. In the remarks with which he prefaced the pronouncement of sentence, the trial Judge commented on the fact that the appellant had previously been convicted for this type of offence, although 24 years previously, and that a comment the appellant had made when arrested suggested that she had been a practising abortionist since then.

In counsel’s submission, previous convictions should not be taken into account, as to do so would be to impose a further punishment for an offence for which atonement had been made. Mr Drake also submitted that the trial Judge erred in principle, in that he appeared to have taken into account a remark made by a very distressed woman attempting to gain her freedom. The appellant had not stood trial for any other offences, and so it was unjust to attempt to punish her for them, as they had not been proved. In conclusion he submitted that a sentence of two years’ imprisonment imposed on a woman of 64 was excessive, as she was not a woman who was likely to be deterred and especially as the woman who had asked her to perform the operation and had subjected herself to its performance had escaped without penalty. For the Crown, Mr Savage conceded that it was likely that the trial Judge had the probability of her having committed other offences in mind, but submitted that the sentence was a proper one irrespective of this factor. It was proper, in counsel’s submission for the trial Judge to have given weight to her previous conviction, as she had been shown the serious nature of her actions. In refusing leave to appeal, the president of the Court of Appeal (Mr Justice K. M. Gresson) said that in the Court’s view the sentence could not be regarded as having been influenced by the possibility of there being unproved offences. Though it was

regrettable that it should have to be imposed on one so advanced in years, the penalty was one that the offence called for. The other members of the Court of Appeal who beard and refused the application were MiJustice Cleary and Mr Justice Turner.