HABEAS CORPUS WRIT.

New Zealand Herald, Volume LXIII, Issue 19447, 1 October 1926, Page 17

HABEAS CORPUS WRIT.

THE SENTENCE ON CAVENETT.

MOVE TO RELEASE PRISONER.

RIGHT OF APPEAL INVOLVED

DISCRETION OF MAGISTRATE,

An application for a writ of habeas corpus to release William George Cavenett from prison on the grounds that the magistrate improperly imposed a, sentence of one month's imprisonment, was heard before Mr. Justice Herdman in the Supreme Court yesterday. Mr. McYeagh and Mr. Sullivan represented Cavenoifc and tho Crown Prosecutor, Mr. Meredith, opposed the application, Mr. McYeagh said the applicant was charged in the Police Court on 'September 8 before Mr. F. K. Hunt, S.M., with the theft of 12 pairs of socks and the theft of an axe. Mr. Hunt had declared that he would convict Cavenett on the first charge and impose a sentence of two months' imprisonment. In respect to the second charge prisoner was convicted and discharged. Counsel. Mr. Sullivan, had then intimated his intention of appealing against the sentence, and the magistrate had said: " There is too much of this appealing and I am going to put a stop to it." Mr. Hunt had thereupon altered his judgment and imposed a sentence of one month's imprisonment,'a term against ! which there was no right of appeal. Alteration of Judgment. Mr. McYeagh quoted from an affidavit in which Mr. Sullivan said Mr. Hunt had threatened to havt> him removed from the Court. Two corroborative affidavits were also produced. His Honor: Was any minute made by the magistrate ? Mr. McYeagh: There is an entry in the record book showing concurrent sentences of two months and one month. His Honor said the affidavits were very similar. Mr. McYeagh said it was obviously the intention of the magistrate to prevent Cavenett from escaping punishment in tho event of a successful appeal on the sentence of two month's imprisdriment. Tho judgment had been altered after notice had been given of an intention to challenge the conviction. It would not bo disputed that the magistrate was entitled to alter his judgment for a proper purpose before entry w«s made in the record book. Although given this discretion, tho magistrate was not empowered to change his decision to prevent a man from securing the benefits of appeal. His Honor: You have to show that the second sentence 'was illegal. Extent of Discretion. Mr. McVeagh: It is the question of a proper exercise of a discretion. His Honor: You have to show that tho magistrate altered his judgment, not because tho man stele the axe, but because he was going to appeal. Mr. McVeagh said it was an instance of a bad exercise pf discretion. Cavenett had been convicted of a serious offence and under such circumstances; facilities for appeal should be provided. Hie magistrate had no right to attempt to render an appeal abortive, and it would be a negation of justice for the Supreme Court. to endorse his act. Counsel referred to findings in cases indicating the conditions under which appeal should be allowed, and the circumstances under which a magistrate could alter a judgment. His Honor: Assume thai a magistrate had made up his mind to convict and discharge a man and then said: "I have just discovered that the prisoner is a Bolshevik, and J, am going to revise the sentence." That would be an improper act. as tho magistrate had to punish the man merely for the o/ferice for which ha was chargeH. Mr. McVeagh: But. if new evidence regarding the charge came to his knowledge he could then alter his decision. Case Against Application. Mr. Meredith said the application was being opposed in no oppressive spirit. His Honor: Let us suppose that the magistrate imposed the sentence merely because notice of appeal was given. Is that legitimate ? Mr. Meredith: If the only object was to prevent the appeal, I would say tho magistrate had no right to do it. Continuing, Mr. Meredith said that a different inference could be drawn. When more than one offence had been proved, it was a popular custom for a magistrate . to impose the term of imprisonment on the major charge and merely convict the offender on the remaining counts. Thus, in the absence of the major charge, the other charges would merit individual sentences. In Cavenett's case, he continued, it was competent to assume that the magistrate had determined to impose a sentence on tho first charge which would embody punishment for both offences. The sentence might have been different in the absence of the second charge. When it was apparent to the magistrate that a successful appeal on the first charge would automatically release the prisoner from penalty for the second offence, he took precautions to ensure that the sentences should be separated. He had been convinced of the guilt of thi! man, and it was a duty to prevent punishment from bring avoided through a technicality. If there had been three or four additional offences, and the sentence had been grouped in the major charge, an appeal on the single charge might release an offender on all counts, as in each case ho would have convictions recorded without penalty. His Honor: It might be said that the magistrate did not give that as his reason for the alteration. Mr. Meredith: It is a reasonable inference, 'and it was within his.power to do it. The refusal to increase a sentence to permit appeal is not improper. If no discretion was allowed, anybody with money could bring the most frivolous matters to the Supreme Court. There bad been a certain amount of warmth in the proceedings, and things may have been said which may not have expressed the views intended. Mr. McYeagh said the expressions of the magistrate disclosed his attitude. His Honor reserved decision and allowed prisoner bail at 150 until next Wednesday.