SUPREME COURT Appeal Against Conviction For Escaping From Custody

Press, Volume CX, Issue 32214, 5 February 1970, Page 8

SUPREME COURT Appeal Against Conviction For Escaping From Custody

“Prison bars do not a prison make,” submitted Mr D. H. P. Dawson in the Supreme Court yesterday, as counsel for a man who appealed against a conviction for escaping on November 8 from lawful custody at Paparua Prison.

The appellant, Michael Patrick Bennett, aged 21, a farmhand, was said to have sawn through the bars of his cell window with a hacksaw (taken from a prison workshop), tied flex from a radio to a bar, and lowered himself from the top-storey window—but the flex had broken and he fell to the ground, suffering an ankle injury. He had crawled 300 yards across the prison grounds to a shed where other prisoners on a vork party the next morning 'ound him, and at his own request carried him back to the prison building. The prison authorities did not even know he had gone. Mr Dawson submitted that these facts could not support a conviction for escaping from lawful custody. Bennett had not escaped, he submitted, because he had not gone beyond the prison bounds.

Mr W. S. Smith, for the Crown, submitted that Bennett, having clearly and effectively gained his liberty, and being out of sight and control of his gaolers, had escaped from lawful custody. Mr Justice Macarthur, after hearing legal argument, reserved decision. Bennett having originally pleaded guilty, being unrepresented by counsel, the appeal was, in effect, an application for a re-hear-ing. his Honour said. Mr Dawson said that although Bennett had pleaded guilty, a point of law was involved—and it could be a case in which there might have been a real miscarriage of justice. Supporting his submission that the prison’s lawful custody extended right to the prison boundary, Mr Dawson quoted the 1962 case of a prisoner, Kafka, who had been convicted of assisting another prisoner, La Mattina, to escape from Mount Eden Prison. Mr Justice T. A. Gresson had quashed the conviction on the ground that La Mattina—who had got out of his cell and secreted himself in the roof of the prison—although out of sight and control of his gaolers was still within the precincts of the prison and could not be said to have escaped in the sense that he had “clearly and effectively regained his liberty.” Mr Dawson emphasised the

use of the word “precincts” in this decision, and submitted that in the ordinary sense this meant “surroundings,” extending to the outside limits. “Prison bars do not a prison make,” said Mr Dawson —one had only to examine the set-up of “open” prisons to see this, he said, where a man was no less in lawful custody because there was no brick wall round a prison.

"It is my submission that because this appellant was within the prison bounds he was still within lawful custody,” Mr Dawson said, and it was for the Crown to have defined the prison bounds. Mr Smith sought to distinguish the facts of the appeal from those in Kafka’s case. He submitted that Bennett had "clearly and effectively gained his liberty” when he dropped from his cell window and crawled 300 yards across the grounds to a shed, where he was, in Mr Justice Gresson’s words, "out of the sight and control of his gaolers”— words which were of some importance, Mr Smith submitted. Mr Dawson, in reply, submitted that if Bennett had secreted himself in the rafters of the shed he would have been in exactly the same position, in law, as La Mattina—but, in fact, he had given himself up. Mr Dawson also made submissions that the penalty of six months extra imprisonment imposed on Bennett was excessive. Appeal Allowed A previous appeal, by George Robert Scott, aged 48, a workman (Mr J. E. Butler), —the first heard in the Supreme Court this year—was allowed in that a prison sentence of nine months, imposed on four charges of theft, was reduced by his Honour to one of six months. Mr Butler said that Scott, who had previous convictions, had kept out of trouble since 1964. In 1965 he had suffered serious misfortune, when his wife, his son, and two other relatives had all died—and from that time he had brought up his five children alone. In these circumstances, imprisonment as a punishment was excessive, and would prejudice his children. A deferred sentence would be the appropriate course, Mr Butler submitted. Mr Smith, for the Crown, submitted that Scott had committed serious and premeditated thefts from his employer over a period from

May to November last—for which nine months imprisonment had been appropriate. His Honour said he was clear that the Magistrate had been right in holding that the only appropriate sentence was imprisonment But the Magistrate had taken “the highly unusual course” of imposing three months imprisonment on the first charge, involving $143, and, cumulatively, six months concurrent imprisonment on the other three charges—for which he had given no reason. "I conclude that the Magistrate did not give enough weight to the consideration that the appellant had kept out of trouble for several years,” said his Honour. “In my opinion, the appropriate sentence was one of six months.” His Honour quashed the Magistrate’s sentence, and imposed one of six months imprisonment on each of the four charges, all terms concurrent. Burglary Of Jewellers Pleading guilty on indictment before Mr Justice Macarthur in the Supreme Court yesterday on a charge of burglary of the premises of Terris Bros, Ltd, jewellers. New Regent Street, on November 22, Trevor George Brokenshire, aged 24, a blocklayer (Mr J. E. Butler), was remanded in custody for sentence on February 9. Brokenshire had reversed a previous plea of not guilty. Discharges From Bankruptcy Unconditional discharges from bankruptcy were granted by Mr Justice Macarthur in the Supreme Court , yesterday to Herman Paul/ Hofacher, retired (Mr D. H.{ P. Dawson), and his wife Adolphine Hofacher (Mr Dawson). Winding-up Peiitlon A petition for the windingup of Sterling Credits, Ltd (Mr A. K. Archer), was adjourned to February i'Vjafter Mr Archer had saK 't&W, there was a reasonable prospect of debts owed being paid. Mr J. S. Bisphan, for the petitioning creditors, William Henry Sparrow, an Ashburton draper, and others, consented to the adjournment