Counsel’s Denial About Sentencing “Rule”

Press, Volume CIV, Issue 30724, 13 April 1965, Page 15

Counsel’s Denial About Sentencing “Rule”

Mr A. Hearn, a Christchurch barrister, denied in the Supreme Court yesterday that he had said in an appeal case things attributed to him by Mr E. A. Lee, S.M., the senior Christchurch magistrate. Mr Hearn was given leave to make his statement by Mr Justice Wilson. Mr Lee was quoted in “The Press” of April 9 as saying that counsel had suggested in an appeal against an imprisonment sentence for driving under the influence of drink that the sentencing magistrate had indicated that imprisonment had to be imposed in every case of intoxicated driving. “His Worship said that this was far from the true position and that he and his colleagues found it difficult to

understand *why any such statement should ever have been made,’ ” said Mr Hearn. “No Such Statement” “My purpose in asking for leave to refer to this matter is to say that no such statement was made by me. It is submitted that any difficulty arose in the following way: in the course of recounting the events leading to the appeal I informed the Court that after hearing submissions the learned magistrate imposing sentence stood the case down until 2.15 p.m. on that day and then said, ‘There cap only be one sentence for this offence’ before imposing the sentence appealed against. “No doubt this was the expression in his judgment referred to by your Honour“What the learned magistrate meant was in my respectful submission for him to say at the time; all I said was that any suggestion of a rule-of-thumb sentencing was foreign to our system of law, and this submission by me is reported in those words in at least one newspaper. “At another stage altogether in my submissions, I said that it used to be the case that there was a rule that imprisonment was imposed in every case, but it was an important part of my submissions that this was not so today, and in support of this I produced to the Court, as I had produced to the lower Court, verified national figures for 1964 showing that of those convicted only 25 per cent to 30 per cent were imprisoned. Examples Given

“In referring to this rule I had in my recollection such comments as had been made by Christchurch magistrates in the past. Examples taken from newspaper reports are:— “On February 3, 1955, where the sentencing magistrate said that if the defendant had been a little older he would have had to follow the rule.

“On March 28, 1955, where the sentencing magistrate said the usual sentence would be imposed; and “On January 24, 1957, where the sentencing magistrate said as the defendant was over the borderline he would impose the normal. sentence.

“At no stage did I submit or intend to submit that Christchurch magistrates at present adopted the rule or view that imprisonment must follow in every case, and my very purpose in producing verified national figures was to show that this was not now so.

“At no stage did I submit or intend to submit that the learned magistrate when sentencing, in using the words he did, meant that it was his view or the view of his colleagues that imprisonment must follow in every case. “I am concerned lest this Court might have been misled by my failure to make my submissions clear, although I submit such was not the case, but if it has and that played any part in the view which your Honour took of the case then, for myself, I should be happy to have the matter reheard and reargued.” Judge’s Comment

After listening to Mr Hearn, his Honour said that his misapprehension had played no part in the result of the appeal. He had since read the transcript of his judgment, and it was quite obvious from that he had indeed misunderstood what Mr Hearn had been submitting. His Honour said he was glad to know that that was not Mr Hearn’s intention, and that he was just using the magistrate’s words against a background to show, that it was not the “rule” followed by Christchurch magistrates.