Gaol Sentence On Youth For Assault To Stand

Press, Volume C, Issue 29638, 7 October 1961, Page 14

Gaol Sentence On Youth For Assault To Stand

Appeals by John Robert Joseph Dowling, aged 20, an apprentice jockey, against his convictions, and sentence of two months’ imprisonment, on two charges of assault, were dismissed by Mr Justice Macarthur in the Supreme Court yesterday. His Honour said the evidence had justified the Magistrate’s finding. He could not disagree with the Magistrate’s view that the assaults were serious.

“In the whole of the circumstances, the Court is forced to take the view that imprisonment is the appropriate one, notwithstanding the appellant’s age and previous good record,” his Honour said. Dowling was found guilty in the Magistrate’s Court at Dunedin on September 7 and Sentenced on September 11. His appeal was heard on Monday. He was represented by Mr R. A. Young, and Mr C. M. Roper appeared for the Crown.

His Honour, giving his oral decision yesterday, said the charges arose from a disturbance at a fish shop in Mosgiel on August 18 about 11 p.m. Two men had been assaulted. The Magistrate hearing the charges had heard not only the evidence of witnesses but also the three accused, the appellant and two other young men. “In my opinion there was evidence of an assault by the appellant on S. F. Smart, and the Magistrate obviously accepted that evidence. There was no direct evidence that anyone saw the appellant strike W. E. Smart, but there was a good deal of evidence from which, if he accepted it, the Magistrate could draw the inference that the appellant had assaulted W. E. Smart,” his Honour said.

"The Magistrate's finding that the appellant assaulted both S. F. and W. E. Smart, was, in my opinion, justified by the evidence. Therefore the appeals against convictions must be dismissed.”

Sentence Appeal The appellant was under 21, and Mr Young had made a strong appeal that he should not have been sentenced to imprisonment. The Magistrate had heard the appellant’s counsel in mitigation at the end oft the lower Court trial on September 7 and was aware of the appellant’s age and circumstances. On September 11. the probation officer appeared in open court and informed the Magistrate that the appellant had not previously been In trouble. The probation officer had added that the injuries suffered by the Smarts could well have resulted in more serious charges being laid, and he

had therefore no recommendation to make.

Having seen the probation officer's full report and heard evidence from the appellant’s father and his employer, he did nof think there was any additional fact that would have influenced the Magistrate in his sentencing, said his Honour.

“Mr Young has properly informed the Court that an application could be made at a later date for the relaxation of the existing ban on the appellant as a rider,” his Honour said.

The Magistrate regarded the assaults as being serious, and the doctor’s evidence supported the view that the Smarts had suffered substantial injuries. “I cannot accept Mr Young’s submission that the Magistrate took too serious a view of the assault,” his Honour said. “It should be said again that there is no such thing as a right, or something in the naturp of a right, for a first offender to be released on probation. There are many cases where, in all the circumstances, a first offender cannot be released on probation.”

The deterrent aspect, not only for the appellant, but also for other young men who might be like minded, was a heavy factor in sentencing. The ordinary, lawabiding public must be protected from such behaviour, his Honour said.

Prisoner Changes Plea Lawrence William Ayres (Mr J. G. Hutchinson) in the Supreme Court yesterday pleaded guilty to two charges of theft, thus altering his plea in the lower Court, and was remanded by Mr Justice Richmond in custody for sentence on Thursday. On August 10, Ayres had pleaded not guilty to a charge of stealing a radio and of stealing two crates ot beer and had elected trial by jury. Mr N. W. Williamson appeared for the Crown when Ayres changed his plea yesterday.