"ENTITLED TO COMMIT ONE THEFT"

Evening Post, Volume CII, Issue 28, 2 August 1921, Page 3

"ENTITLED TO COMMIT ONE THEFT"

"AND REMAIN AT LIBERTY"

MR. JUSTICE'SALMOND AND

PROBATION.

(»T TELIGR.trH.—PRBSB ASSOCIATION.)

AUCKLAND, Ist August.

"Every man in this country is entitled to commit one theft or one forgery with safety and remain at liberty; that and nothing else, it seems to me, is the meaning of the Court ol Appeal's decision." This startling statement was made by Mr. Justice Salmond in the Supreme Court to-day.

His Honour, addressing a prisoner from Gisborne, Albert Lithwark, ea.id:

"You have pleaded guilty to a charge of forgery. The facts arc that you obtained from" your employer a cheque for £1 16s as wages, and immediately altered it to £10 16s, passed off the forgery on a tradesman, and received the full amount of the cheque. There are no circumstances of extenuation or excuse, so far as I know, and if I were at liberty to do -what I thought right in the exercise of my own judgment 1 should sentence you to imprisonment for a term of six months as a protection to the community against thieves and forgers. Fortunately fo.r you, the question of the proper standard of criminal sentence came before the Court of Appeal last week under an Act passed last yeaj, which enabled sentences of this, Court to be reviewed by the Court of Appeal. Tihe facts in that case were more serious than in yours." After stating the facts, his Honour proceeded: "Nevertheless, the Court of Appeal has held that an offence of that description is not one deserving of any .punishment. The Court ordered the a<xused to come up for sentence when called upon at any time within throe years, and discharged him from custody, 'the result is that he was automatically admitted to probation for that term under section 16 of the Act of last year. I am bound to follow the precedent so established by the Court of Appeal, but I think it'right to say () that it in no way represents my personal opinion in a matter of that sort.

"The decision, seems to me to amount to this and nothing else: That probation is a matter of course and a matter of right in the case of offences of dishonesty, unless they are repeated; in other words, every man in this country is entitled to commit one theft or one forgery with safety and remain at liberty. ■

"I cannot help thinking that is a doctrine unsound and dangerous, the inevitable result of wbioli is the degradation of the standard of honesty in this community. Probation, as 1 regard the matter, ought to be treated-as a special privilege, to he granted on special grounds and in special cases, and not a privilege 1 to be granted as of right and as a matter of coirrse in all cases of a certain class. The Probation Act, properly used, is a -valuable measure capable of reasonable and proper use in many eases—for example, where an accused person is very young, so that what he really requires is quasiparental discipline rather than imprisonment. Probation is also appropriate where the accused, although an adult, is in some degree weak-minded and, therefore, similar to a child. It may also be very appropriate where an offence is committed under the influence of drunkenness so as not to prove an established criminal intention; so also when there are; special extenuating circumstances, such as special temptation; and also if the offence is trivial or technical. But wluere, as in. your case and in. other cases, the offence, is in its nature a. serious one, committed deliberately by an adult without special justification, excuse, or extenuation, to grant probation as a matter of course or of right is a direct method of producing- crime in this country, and nob of preventing it. It simply tempts persons to commit crime who otherwise would remain honest. * "However, I am bound, as I have said, to follow the precedent that has been established by the Court of Appeal. You are discharged from custody, and ordered to come up for sentence within two years if called on."