Supreme Court Apprentice Jockey’s Appeal Against Conviction, Sentence

Press, Volume C, Issue 29634, 3 October 1961, Page 12

Supreme Court Apprentice Jockey’s Appeal Against Conviction, Sentence

In sentencing three youths to imprisonment for assault a Dunedin magistrate “had been carried away” by describing them as three hoodlums who had gone berserk, Mr R. A. Young said in the Supreme Court yesterday. The Court was hearing an appeal by John Robert Joseph Dowling, aged 20, an apprentice jockey, against conviction and sentence on two charges of assault Dowling was found guilty in the Dunedin Magistrate’s Court on September 7 and sentenced to tiwo months’ imprisonment on September H. Yesterday’s hearing was before Mr Justice Macarthur. Dowling was represented by Mr Young; Mr C. M. Roper appeared for the Crown. After hearing counsel’s submissions, and evidence as to the youth’s character by the appellant’s father, and a Wingatuf owner and trainer, David Porter Wilson, his Honour adjourned the case to later this week for decision. Dowling’s conviction arose out of an incident in a Mmgiel firti shop on August 18 when Dowling, his 18-year-old brother, and a youth named Blake got; into a dght Smart brQStoerg «‘««ed “, Gsp ta Mr Young said during the fight one of the Smarts suffered a fractured jaw. (T _ There was no evidence John Dowling struck the man vrtiose jaw was fractured, he Mr Young said argument about the youths opening the door of the shop led to one of the Smarts "laying hands” on the appellant. one of the Smarts was the first to we physical f< T ce ,' a”*? n wa * “ ■ result of what Smart did to toe appeitaiU that toe incident occurred. Reading from a Dunedin newspaper doping, Mr Young quoted toe Magistrate as saying: -H ever a case called for birching, this one doos. Possibly one day those in autoonty will realise such a course would provide an effective deterrent Whwe a“ saults are made on older men

not able to defend townselves.” Mr Young said toe Magistrate had described the youths as three hoodlums who had gone berserk and given the complainants a tremendous thrashing. At the time there was something of a wave of public feeling against some types of youths, but that did not justify a judicial officer being carried away by emotion, because justice and fair play was the most important, said Mr Young. “Career Finished” Mr Young said that as matters stood toe appellant’s career as a jockey was finished. ‘Two days after Dowling’s conviction a letter was sent to him by the Hading Conference with the news that his apprenticeship had been cancelled and his name added to toe list warning owners and trainers against employing him,” he said. “This boy it not, and never has been, a hoodlum. He has been under strict control, and there is no suggestion that he mixed with that type of company.” His Honour said there was also another side to toe matter. The public interest was once of the main factors which the Magistrate had to take into account. Assaults, fighting, and other crimes of violence were serious mattens and the public had to be protected from incidents of the kind in which Dowling was involved. Mr Young submitted that the sentence of two months’ gaol Was manifestly excessive on four grounds. These were the age of the appellant at toe time; the Magistrate’s failure to have proper regard for the character and per-

sonal history of the appellant, who had an unblemished record; the Magistrate’s failure to have regard to all the circumstances of the case; and that no proper or adequate probation officer’s report was obtained before the appellant was sentenced. Crown Submissions Mr Roper submitted that it was relevant that the appellant and his brother had tom and bleeding knuckles when they were interviewed by a constable after the incident. There were no marks on the hands of foe other accused, Blair. These factors were material when considering the evidence of F. S. Smart that he recalled seeing his brother on the footpath outside the shop being attacked by two persons, said Mr Roper. Mr Roper said he conceded that the only evidence that the appellant assaulted W. E. Smart was by way of inference from the condition of the appellant’s knuckles, and the evidence of F. S. Smart of seeing two persons striking his brother. He said the incident could be regarded as a joint enterprise, that there was some premeditation on the part of the three youths, and that they had gone out of their way to provoke an incident “If they did that it would not matter if the appellant hit W. E. Smart or not. He would be liable for the whole consequences of the incident” Mr Roper said. Mr Roper said the Magistrate was entitled to believe that a leading apprentice jockey should be expected to be a man of judgment, common sense, and responsibility. The appellant in this episode had shown none of these attributes.