A "FREE" PRISONER

Evening Post, Volume CXXVI, Issue 1, 1 July 1938, Page 11

A "FREE" PRISONER

ESCAPE FROM GAOL

SENTENCE BEING SERVED

WHAT THE LAW SAYS

When a man escapes from prison in New Zealand _and remains at large, he has the satisfaction of knowing that in the period of his liberty he is "work- - ing" off his. sentence, although he is *itot behind bars; if, of course, he is rearrested, he can be sentenced for escaping. That is the effect of judgments delivered by the Court of Appeal today. Such" a position has been covered by the law in Canada and New South Wales, but there is no statutory provision in the Dominion; it ■ was a - simple matter to overcome the difficulty if that were considered desirable, said the Chief Justice (Sir Michael Myers), but it could be overcome only by statutory enactment. . Whether,the period during which a " prisoner is at large after escaping from custody should be counted as part of t&e sentence originally imposed upon him was the question referred to the Court of Appeal by way of originating summons. The plaintiff was Thomas William Wilson, for whom Mr. C. A^ L. Treadwell appeared, and the de-, fendant was the Attorney-General (Mr. ] H. H. Cornish, ICC). The Court consisted of the Chief Justice (Sir Michael Myers), Mr. Justice - Kennedy, Mr. Justice Johnston, and Mr. Justice Fair.

On June 18, 1931, at Duriedin, Wilson was sentenced by, Mr. Justice Kennedy to concurrent terms of imprisonment, the longest being one of five years with hard labour, to be followed by one year's reformative .detention. Wilson was transferred to the Auckland prison, knd on "December 16, 1931, he was removed for treatment to the Auckland. Hospital, from which he escaped "four days, later. He went to the. United States, and in March, 1936, he was deported from Los Angeles and arrested at Auckland on April 17,1936. On May 4,1936, he was sentenced by Mr, Justice .Fair to twelve months' imprisonment "for escaping, the sentence to Joe cumulative with the sentence of 1931.

The sentences of June, 1931, expired on June 17, 1937, unless the escape suspended the operation of the sentences,- and, if those sentences expired on June 17, 1937, the sentence imposed by- Mr. Justice Fair expired on June 17, 1938.

The Chief Justice delivered one judgment with which Mr-Justice Kennedy and Mr. Justice Johnston concurred, and Mr. Justice Fair gave a separate judgment

A FIXED PERIOD. "It is always necessary for the warrant to fix the term of imprisonment," said the Chief Justice. "That expression 'term of imprisonment' is commonly used in the criminal law . . . and it connotes to my mind, a fixed and definite period. There have been cases in which "it has been necessary to ascertain the date of the commencement of the period, and it has been

held that; where it is necessary, for

example when the imprisonment is to ' be'reckoned" Irom the time when a person is arrested, it is the gaoler's duty to inquire' when the arrest actually happened, and the fact is brought before the Court in habeas corpus proceedings. • The commencement date having" been" 'ascertained, -then;..in. .as much as the term of imprisonment is fixed by the warrant, ,fhe date for the prisoner's discharge is automatically ascertainable, because'as it seems to me the term is necessarily a continuous term. In New Zealand it is enacted by Section 34 of the Prisons Act, 1908, that all sentences of imprisonment on any offenders convicted at any sittings of the Supreme Court shall date from the first day of holding such sittings, and all other sentences of imprisonment from the date of signing any warrant of commitment under which any offender is detained in custody, unless such-prisoner was at large at the'date of signing sud£ warrant, in which case the sentence shall date from the time of arrest of the prisoner. Consequently, in the -last-mentioned case, it would still be necessary for the gaoler to inquire as to the time of arrest and note it upon the warrant of commitment. In the other cases provided for by the section the commencing date of the term is fixed, and therefore, sub* ject only to possible remission of part of the sentence, the expiring date of the sentence is fixed automatically," . PENALTY FOR ESCAPE.

"When a prisoner is received into custody by the gaoler it is the gaoler's duty to keep him in custody for the term,mentioned in the warrant, subject to remissions if any. If an officer of the prison in which a prisoner is lawfully confined voluntarily and intentionally permits the prisoner' to "escape from such prison, he is liable under section 147 of the Crimes Act to five years' imprisonment. If a person, having been convicted of an offence, escapes from any lawful custody in which he may be under such conviction, or, whether convicted or not, escapes from any prison in which he is lawfully confined on any charge of a punishable offence, he is liable under section 142 to seven years' imprisonment. . It was under this lastmentioned "section that the plaintiff was sentenced by Mr. Justice Fair on May 4, 1938, to imprisonment for the term of twelve months. : "If a prisoner escapes and remains at large for a period he must, if found

arid arrested, serve the unexpired-por-tion of his sentence as from the date -of rearrest, and; in addition, he may be sentenced to a term of imprisonment under section ,142; but nowhere in the books can I find that by the common law the original term of im-I prisonmerit is to be extended by the i . period during which the prisoner was at large; nor can I find in any British jurisdiction any case but one in which the question has arisen at common law. ..... ' SIMPLE TO REMEDY. "It is a simple matter to overcome the difficulty if that is considered desirable, but it can only be overcome, by statutory enactment," continued his Honour. "That course,, indeed, has been adopted in certain jurisdictions; for example, in Canada and New South Wales. The Canadian enactment is contained in section 196 of the Criminal Code, and is as follows:—'Everyone who escapes from custody shall, on being retaken, serve, in the prison to which he was sentenced, ■ a term equivalent to the remainder of his term unexpired at the time of his escape, in addition to the punishment which is' awarded for such escape.'" In' New South Wales, continued his Honour, the position appeared to have been., at first only partially 1 met, but by subsequent enactment the New South Wales Legislature amended the Crimes Act by adding the following new offence; . x ' " "Whosoever escapes from lawful custody while undergoing a sentence involving deprivation of liberty shall be liable upon recapture to undergo the punishment which he was undergoing1 at the time of his escape, for a term equal to that during which he was absent from prison after the escape and before the expiration of the term of his original sentence, whether at the time of his recapture the term of

that sentence has or has not expired, in addition to any punishment which may be awarded for the escape;" He could find nothing in the common law which justified the gaoler in detaining a prisoner who had escaped and had been rearrested beyond the expiry of the term mentioned in the warrant on the ground that the prisoner had not served his full sentence and must therefore have added to it a period corresponding with that during which he was at large. He was compelled, therefore, to the opinion that the question in the originating summons should be answered by saying that the terms of imprisonment mentioned in the warrant could not be extended by adding thereto the period of time during which the plaintiff was at large. If it was thought that the law was defective, the position could be remedied for the future by legislation on similar lines to that of Canada or New South Wales. Mr. Justice Fair supported the judgment of the Chief Justice. !