THE PROBATION ACT

Otago Daily Times, Issue 14212, 13 May 1908, Page 5

THE PROBATION ACT

LIMIT TO APPLICATION. (Per United Press Association.) WELLINGTON, May 12. William Georgo 'I'ustiu,. for many years in business as a painter, etc., in Wellington, who was recently convicted of an offence against the Bankruptcy Act, was set forward for sentence beforo Mr Justice Cooper at tho Supreme Court this morning. Mr T. Young (on behalf of the .prisoner) asked that Tustin be. admitted to probation, l'hero had been a total absence of fraud in connection with the caso. The count alleging that there bad been Was expressly negatived by the jury, and it was fair comment that the prosecution was not the wish of tho general body of creditors, but that of a few creditors who were not present when tho resolution not to prosecute was framed. Tho meeting was representative of some £5000 of debts,' whereas there were only £131 due to those who wanted the prosecution. There had .been no misrepresentation of any kind in borrowing the money, and' the bankruptcy was due solely to largo ' losses on contracts which Tustin entered 1 into. Counsel did not intend to call evidence as to his client's previous good ' character. It was proof that he had been of good repute to mention that he bad • been a justice of the peace for 20 years, and had held that position until shortly : before his bankruptcy. Mr Young next referred to the varying interpretation placed upon the First Offenders Proba- ' tion Act in its relations to such offences, ' and expressed a hope that Mr, Justice ' Cooper would see his way to adhere to j his previous interpretation, -and extend ' probation to this prisoner. If, however, ' hi-3 Honor felt bound by Mr Justice Wil- ) liarns's refusal to grant probation for j such offences, counsel submitted that a nominal punishment would meet the cas,e. ' The charge was laid against him nine months ajo. Tho trial took place six ' months ago, and prisoner had been in an ( agony of suspense ever since, and undergoing what was a severe punishment to ' a business man. What was thought of ' him was shown by the fact that he was j now, employed by ono of his largest ' creditors. * Mr Justice Cooper 6aid be felt ..that he ' ought to follow the example set by Mr Justice Williams in regard to a similar J case, and refuse to grant probation. In ' that instance his Honor had said that if { he admitted to probation, a bankrupt who [ had been convicted of failing to keep ( proper books and accounts it would havo ' the effect of violating the bankruptcy ' statute, which contemplated that men ' should suffer punishment for offences of J this sort. What Mr Justice Cooper ' understod from that was that Mr Justice ( Williams thought there should be no appli- c cation of the First Offenders Probation l Act to such offences; but it seemed to Mr ' Justice Cooper that if a judge cho6e to ' exercise his jurisdiction under the act ' there could bo no question of his jurisdic- c tion. It was, however, a point upon ' which the judges were agreed, that there ' should bo' no extension of Iho First J Offenders Probation Act to such cases as ' I hose. He had, as a. matter of fact, consulted with Mr Justice Williams on this ' point, and was in accord with the sug- ' gestion that there should bo unanimity of r application. It was now established that J probation could not be granted to an J 'honest and unfortunate man who 'had * offended as Tustin had, and his Honor T proposed to deal with the case by sen-, J' tonciiig Tustin to six months' imprison- * ment, to date from November 18, on e which date he was convicted, and under ' sections 15 and 16 of the Prisons Act ho . v would order Tustin to be treated as a mis- '• demeanant of the first division. He would c thus be kept separate from ordinary F prisoners, and would not be required to ,' wear prison clothes. It was the policy of ' the Bankruptcy Act that when a. bankrupt !' had obtained credit without any reason- J able expectation of being able to pay his {' debts, there should be some degree of '' punishment. That was the view of Mr 6 Justice iVilliams, and that was the view j| that his Honor had taken In this case. n Under the circumstances of this case he P thought the law would be sufficiently vindi- s cated by tho sentence ha had parsed, though at the same time his Honor recog-. c niewl that there might bo offences against r the act calling for sentences of imprison- \ ment for lone; terms with hard labour. {■ In this case the prisoner'e sentence would , expire on the 17th inst. Prisoner was ' then taken into custody by the gaoler.