Evening Post. SATURDAY, AUGUST 6, 1921. THE LAW AND PUBLIC MORALITY

Evening Post, Volume CII, Issue 32, 6 August 1921, Page 4

Evening Post. SATURDAY, AUGUST 6, 1921. THE LAW AND PUBLIC MORALITY

The refusal of Mr. F. K. Hunt, S.M., yesterday, to grant probation to a man who was convicted of receiving two stolen furs will jprob^ ably be generally approved. He pointed out that pillaging has grown to so serious an extent that drastic steps' are needed to put it down. To the contention of prisoner's counsel that, according to the recent decision of the Court of Appeal, the case was one for probation, the Magistrate replied : "I am not going to be bound by those rules in this Court." The master is apparently one in v/hich a Magistrate enjoys an independence; which. is denied to the Supreme Court. By the Crimes Amendment Act of last year any person convicted on in-^ dictinent of a crime was enabled, with the leave of the Court of Ap^ peal, to appeal to that Court against his sentence on the ground that it is excessive. It was under this section that Mr. Justice Salmond's sentence of imprisonment on the forger to whom he had re^ fused to grant probation was revised and probation substituted. As the section is limited to convictions on indictments, and to other sentences which only the Supreme Court can impose, the Magistrate's Courts are beyond its scope,,and there appears to be no other process by which, in the absence of an erroneous interpretation of the law, the sentences passed by these Courts can be interfered with. Mr. Hunt, S.M.s, determination not to, follow the ruling of the Court of Appeal in. regard to probation seems therefore to be something with which no other authority can overrule.

The result is, we think, satisfactory for the morality of the country. Drastic.steps are needed, a<s the Magistrate says, to put down the pillaging which is rife, and there are many other ways in which the laxity induced by the war is very seriously affecting the morals of the, community and interfering with its trade and commerce and property rights. The Jaws devised for the protection of society seem to be hardly equal to the strain, and assuredly require not less but more deterrent power behindythem. But what would happen if what appears to the lay mind to be the logic of the Court of Appeal's decision were to be applied all round? What would have been the effect in transportation services and elsewhere if Mr. Hunt's decision yesterday had been fpr two months' probation instead of two months' imprisonment? And what would be the effect on the standard of law observance and public morals if the normal sentence for petty offences was changed to " 20s and in default seven days' probation " ? The average offender would surely prefer probation to a fine just .as decisively as he would prefer a fine to imprisonment. The era of probation and moral suasion would multiply the work of the Courts and of the police, and an.enlarged staff of probation officers would have their hands full. The ultimate out«ome might perhaps be a reaction in favour of decidedly stricter methods than those now prevailing.

■The interpretation' which was placed by Mr. Justice Salmond upon the decision of the Court of Appeal, and which first called attention to its dangerous possibilities,! has not been allowed to go unchallenged. Mr. Justice Salmpnd's criticisms were prima facie liable to discount as those of the *Judge whom the decision had overruled, and who was therefore concerned to make the worst of it. The overruling" 1 of his refusal to grant probation to a first offender convicted of theft and forgery was interpreted by him to mean:

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 oountry is entitled to commit one theft or one forgery with safety, and remain at liberty.

It is well to be able to set against this startling pronouncement the statement made two days later by Mr. Justice Adams, who was a party to the decision in question. In granting probation to a forger at Auckland he expounded the decision as follows:

The Court of Appeal did cot in fact lay down any new principle. The application of the principle has been in practice for twenty years. . . . Probation is not a license to do wrong, noi it is very desirable to differentiate from punishment. In. actual fact it is itself, in my judgment, a somewhat serious punishment. A prisoner put on probation must understand that ho must be .exceedingly .oareful to comply implicitly with tho

directions of the probation officer and with the conditions, laid down in the 1920 Act. . . . , , ■

Mr. Justice Adams is doubtless right in saying that the Court of Appeal has not laid down any pew principle. "The case," said the Court itself, "is certainly one in which probation would be granted according to the practice which has prevailed for many years," and the Act passed last year was mentioned as indicating " an approval by the Legislature of ■ the way in which, speaking generally, probation has been granted by the Courts." In view of the established practice and this legislative approval, the Court of Appeal proceeded to declare the sentence passed by Mr, Justice Salmond on a thief and forger excessive, and to grant probation instead. This is substantially all that the judgment amounts to. There is no discussion of the principles involved and no analysis of the c}rcum.st^n.ces. Mr. Justice Salmond refused probation on the grounds that the offence was deliberate, that there were no extenuT ating circumstances, and that forgery had beepme very frequent, As to the \veig'dt or even the re^ levancy of these grounds, or any of them, the decision of the Court of Appeal leaves, us entirely in the dark. That they were not strong enough to prevail is all that we know, and in the absence of any specific reasons it seems to us that Mr. Justice Salmond is fully Justin fied in construing tlje judgment as. " a general license to commit one theft or one forgery with safety and remain at liberty.", Instead of be-, ing reserved as^a special privilege for offenders who can be cleared of an established; criminal intention, probation is now to be regarded as the rule for first offenders, and as a matter of course if not of actual right. Mr. Justice Adams's plea that probation is of itself a severe punishment does not help matters. Probation is a mild punishment in comparison with imprisonment, and to the deliberate criminal it is a great deal more than halfway towards acquittal. The system has now travelled far from the inten-* tions of its founders, and the Government should see that its conditions are at once amended, defined, and reconciled with the public welfare.