Judge Warns Against Excessive Sentences

Press, Volume CIII, Issue 30540, 8 September 1964, Page 1

Judge Warns Against Excessive Sentences

(New Zealand Press Association)

AUCKLAND, September 7.

There was no scope for any automatic infliction of a gaol sentence regardless of the circumstances of the particular case, Mr Justice Gresson said in the Supreme Court at Auckland todav.

He was commenting on appeals by three men, each of whom Mr Stewart Hardy, S.M., had sentenced to 14 days’ imprisonment on a charge of driving while so under the influence of drink or drug as to be incapable of having proper control. Each man had also been disqualified from driving for three years.

His Honour varied the sentence imposed in each case, substituting a fine in two cases and a term of one week’s imprisonment in the third.

The disqualifications from driving were unaltered.

His Honour said no-one disputed the fact that driving while so affected by drink as to be incapable of having proper control of a car was a serious offence, and was a source of great potential danger to the driver himself, to his passengers and, above all, to other road-users. This fact was recognised by all courts and by the Legislature itself, which permitted a maximum penalty of three months’ imprisonment or a fine of up to £lOO, notwithstanding that it might be a first offence and that the offender had an otherwise blameless record. “Every magistrate, in imposing what he feels to be the appropriate penalty, is entitled to the exercise of an independent judgment, but it must be a controlled and deliberative judgment,” said his Honour. “This Court is not free to substitute its own opinion for that of a magistrate, and may only interfere if satisfied that the sentence imposed was in the words of the statute, •clearly excessive.' Once so satisfied, however, it becomes this Court’s plain duty to reduce the sentence.” Court’s Discretion He said automatic infliction of a gaol sentence would be a matter for the Legislature to determine—and it had though fit to leave the Court free to exercise a discretion as to fine or imprisonment. “In these circumstances there must not be a rigid imposition of a prison sentence irrespective of the facts of the particular case,” he said “It would be a matter for the Legislature to determine as a matter of policy. “I express no opinion as to the policy question involved, save this: that it has been my experience while on the Bench that mandatory minimum penalties can, in certain circumstances, create, grave injustice. In any field, occasions arise where justice must be tempered with mercy, and exceptional cases are encountered which call for exceptional treatment.” His Honour cited the example of capital arid corporal punishment These were matters upon which there were strong and widely-differing opinions held in the community, and in these circumstances the Legislature made the decision which the courts then applied. Here —in the case of drunken driving— Parliament had left the courts with a discretion, and it was a discretion which the courts must exercise. Task Of Court “It is to the facts of each case, and of the particular offender to which the tribunal must address its mind,” he said. “In this connexion one should not overlook the fact that seven days in gaol is, in itself, a significant punishment for an otherwise reputable first offender, and the three years’ driving disqualification is itself a powerful deterrent. “I am sure the majority of Magistrates act on the view that seven to ten days’ imprisonment. as opposed to 14

or 21 days in gaol, is an adequate penalty and an adequate deterrent in what one might call a straightforward case with no aggravating circumstances. “It is justice according to law which the citizen is entitled to expect. “If this Court makes a considered pronouncement with regard to a legal principle, or feels obliged to make certain general observations with regard to the appropriate penalty in a certain type of case, then it becomes the duty of the inferior tribunal —and 1 use the term in its strictly legal sense—to heed the directions of the superior Court, in the same way as this Court accepts, without question, the superiority of the Court of Appeal, which, in its turn, acknowledges the supremacy of the Privy Council. Views Shared “However wide a scope may be allowed to judicial inde pendence, a Magistrate should take due notice of the penalties imposed by other Magistrates in cases of a comparable nature, and if, unhappily, any conflict of view should arise between the views of the Supreme Court and those of the Magistrate’s Court in this connexion, there can be no question but that the views of this Court must prevail. “1 am authorised to say that the views which 1 have thought it necessary to express are shared with the other Auckland Judges, and these observations will be taken into account in future appeals.” Borderline Case The three appeals bn which his Honour Was commenting were those of Graeme Bernard Day, of Gordonton, Raymond Vowels, of Morrinsville, and James Ashby, of Waimiha. Mr M. J. Gavin, for Ashby, pointed out that a doctor who examined Ashby soon after his arrest said he considered it to be a borderline case. His Honour commented that Mr Hardy said in the course of his judgment: “There has been some talk about a borderline—there might be a line, but there are no borders to it.” His Honour continued: “if, as appears from the record, his comment is related to the question of penalty, it reveals, and 1 say it with respect, a mistaken approach to this whole question. “I think that, as first offender, Ashby was excessively punished having regard to the fact that, as the doctor certified, he was affected only to a minimal degree by the liquor he had taken.” He quashed the term of imprisonment and substituted a fine of £35. Defective Sight His Honour varied the sentence on Day to a fine of £25. “I am satisfied that such a fine will meet the case, and that to impose a sentence of 14 days’ imprisonment was clearly excessive,” he said. Mr Gavin, for Day, said that

again the . examining doctor considered this was a borderline case. His client had vision in only one eye, and showed some nystagmus of the other. His Honour said that here again the Magistrate, in his view, had failed to give effect to one factor which must be taken into account in this type of case: the doctor considered Day “only just unfit to drive.” His Honour reduced the prison sentence imposed on Vowles (Mr J. E. S. Allen) to one of one week’s imprisonment. He said he considered that Vowles had been drinking to excess, had arisen early and being tired and overworked the liquor he took had a drastic effect bn him. The substituted sentence would not only suffice, but would indeed be a significant penalty, said his Honour. His Honour adjourned to a date to be fixed a similar appeal against a sentence of 14 days’ imprisonment with three years’ disqualification from driving by John Donald Rea, of Putaruru, who had also been convicted of driving while under the influence of alcohol. Five other appeals against

decisions by Mr Hardy were dealt with. His Honour reduced to 12 months a period of disqualification from driving for 18 months imposed on Alan Charles Wright, of Tokoroa, on a charge of dangerous driving. Wright had also been fined £2O. The fine was not varied on appeal. A fine of £l5 imposed on John Ralm, of Hamilton, on a charge of using a vehicle in such a condition that it might cause injury and a fine of £l5 imposed on him for operating an unroadworthy vehicle were upheld. His Honour varied a twomonths’ disqualification from driving to the extent that Ralm might drive solely in the course of his employment between 7 a.m. and 6 p.m., Monday to Friday only.

His Honour dismissed an appeal against sentence by Denis Robert Cassidy, of Hamilton, who had been fined £3O and had his licence cancelled for two years on a charge of dangerous driving.

His Honour varied the period of disqualification from driving imposed on David William Fellingham, of Hamilton, who had been fined £l5 and disqualified from driving for four months on a charge of carelessly using a motorvehicle. His Honour reduced the period of disqualification to one of three months. He said he did this without in any way implying that the original disqualification had been excessive: He took into account the history of the case and the difficulty there had been in obtaining a suitable date for the determination of the appeal. “Defiant” Youth An appeal against sentence by James Douglas Newdick, of Whakatane, who had been disqualified from driving for a total of four years on two charges of driving while disqualified was dismissed. Newdick had also been sentenced to borstal training for these offences. His Honour said he was satisfied that Newdick had shown himself to be a defiant young man, with little or no respect for the Court’s orders. He said he was not satisfied that the period of disqualification imposed and the sentence in general were clearly excessive.