PLEA FOR MITIGATION.

New Zealand Herald, Volume LIX, Issue 18021, 21 February 1922, Page 3

PLEA FOR MITIGATION.

PRISONER'S STATEMENT. TRUTH DENIED LATER. JUDGE'S STRONG COMMENT. IlrViVPil sentence on James John Packer (Mr. Singer), found guilty last Thursday of having assaulted a Maori girl at Opuhi, Buy of Islands, with intent to commit rape, was passed by Mr. Justice Stringer at the Supreme Court yesterday. Packer was sentenced to three years' imprisonment with hard labour. When prisoner vac up for sentence previously Mr. Singer pleaded for leniency. Counsel said that prisoner, acting on the advice given him by a country solicitor, did not tell the police in a statement made prior to his arrest that he went into the girl's home. Mr. Singer advanced that he Mas consequently hampered in conducting tlio defence. He had decided it. would bo better not to call the accused and other witnesses as accused would have been forced to admit under cross-examination that his statement to the police waft not true. This would have discredited him. Ho was now at a disadvantage in that certain facts which might havo lessened tho gravity of tho oifenco had not come before tho Court. His Honor on that occasion said lie had been placed in an embarrassing position, and would ta/ko time to consider the matter. A written sentence w^w passed yesterday. At the outset His Honor states that, after careful consideration, ho is satisfied he ought not to allow the statements made by Mr. Singer, as to there being mitigating circumstances not disclosed at the trial, to influence him in any way in deciding on the sentence. As he understood it the suggestion was that, bad the whole facts been produced the jvry miglit have acquitted tho accused on the grave charge and found him guilty on one or other of the minor counts of the indictment. The explanation for failure to produco the alleged mitigating circumstances was that accused's statement to the police suppressed certain material facts having the effect of makiflg it untrue in its most important part. Proper Course Jor Counsel. "I find it. difficult to believe that my solicitor could have given such improper and foolish advice," proceeded His Honor. "It was optional with the aowised whether or not he made any statement at all, but if he elected to make a statement, I cannot understand any solicitor advising him to do otherwiso than to make a true statement and ono to which he was prepared to adhere." /Assuming that such advice was given the proper coui'fie for counsel at tho trial/was to have rectified the initial blunder, and to have frankly admitted the statement was false, and to have endeavoured to establish what he was. instructed were tho real facts of the case. By allowing the statement to go before the jury without qualification he, in effect, invited them to accept its contents. "Such a method of conducting a defence, in my opinion, is irreconcilable with tho highest traditions of .the Bar," remarked His Honor. Counsel now argued, proceeded the statement, that in passing sentence the Court should accept his ex-parto statement, based on his client's instructions. As that story is quite inconsistent both with the evidence and some of the circumstances tho jury might quite properly havo rejected it as untrue and returned the same verdict as they did. As the accused through his counsel was not prepared to submit this issue to the jury it seems somewhat unreasonblo to expect the Court to accept the mere statement of the accused that he is now giving the real truth of tho story.

Three Years' Imprisonment. Commenting that as the prisoner now confessed that his statement to the poljce was false in its most vital part, His Honor asked how ho could be expected to accept the later story. Having made a, false statement in the endeavour to escape conviction he was jiist as likely to have made a false one with a view to mitigating the punishment. He -was not disposed to encourage the idea that counsel could allow what he believed to be a. false statement te go to the jury in the hope of an acquittal and then present a different version of the facts, as grounds for mitigation of the sentence. ' _ 'The jury made a recommendation to mercy without stating thu. grounds. "Giving full effect to this recommendation," concluded the judgment, "I cannot do otherwise than pass a substantial sentence upon the accused. In tho country it must frequently happen that women and young girls are necessanly left alone or with young children only in the house, and it is my duty, therefore, So far as I can, to protect them from outrage by casual visitors. This I can only do by uaEsinc upon persons convicted such a Sentence as will operate as a deterrent to others who might, m like ciTcumstances, be tempted to commit a similar offence. The sentence of the Court is that the prisoner be imprisoned for three years."