APPEAL AGAINST TERM OF GAOL GIVEN BY MAGISTRATE FAILS

Wanganui Chronicle, 4 November 1949, Page 3

APPEAL AGAINST TERM OF GAOL GIVEN BY MAGISTRATE FAILS

An appeal against the Magistrate’s sentence of nine months’ imprisonment on a csarge ol being a rogue and a vagabond, in that he was found by night without lawful excuse in enclosed premises was made by Clifton james Ward before Mr Justice E. Hay in the Supreme Court, Wanganui, yesterday. The appeal was dismissed on the grounds that it was the duty of the Magistrate (Mr. S. S. Preston, S.M.) to take into consideration appellant s previous record and also the prevalence of the type of offence in the district.

Evidence given in September in the Magistrate’s Court was reviewed by Mr. J. A. Scott (Wellington;, who represented appellant and by Mr. N. R. Bain, who appeared for tne Crown. Appellant was sentenced to nine months’ gaol under terms of Section 52 of the Police Offences Act, .1927, said Mr. Scott. The maximum penalty that could be indicted under- that section was 12 months’ imprisonment. Appellant had been given threequarters of the maximum penalty, yet the facts of the case had shown it to be the lightest of offences under that section, he submitted. It was claimed that appellant could have been dealt with under Section 54 of the same Act where persons without lawful excuse were liable to a maximum fine of £lO or a prison sentence of three months. “Appellant doesn’t mind doing a term of three months that would be concurrent with the sentence he is serving for theft but it is submitted that the magistrate imposed too harsh a penalty wnen he made it threequarters of the maximum under a section of the Act which covers so many more serious matters," submitted Mr. Scott. The obvious difference between the two relevant sections of the Act was that under Section 52 there was provision for a heavier penalty for persons who had been previously convicted of being idle and disorderly, said Mr. Bain. In appellant’s case, there had been two previous convictions of this nature. If the case had been an isolated one the police would have naturally prosecuted under Section 54 but when appellant’s record (22 previous convictions) had been established, the court was entitled to take that into consideration, the Crown prosecutor submitted.

“This is a very big police district and the fact that there is so much absence of crime is due to the fact that magistrates impose sentences which stop or keep people of this kind away from the district," he added. “It is true the magistrate is a judicial officer pot long in the district but he is a man with very wide previous practice in the country and in the city —the very large city of Auckland. He is a man to whose judgment in matters of this kind I pay great attention and the exercise of whose discretion I would be very reluctant to disturb," said His Honour. The offence had been clearly established and his Honour considered that while the offence came within Section 52, prosecution under Section 54 was justified by reason of the fact that appellant was facing a charge of theft at the time, to which he pleaded guilty, and that he had an imposing list of previous convictions. Appellant had reached Wanganui at midnight on the night in question and by 2.15 a.m. was under arrest for being found without lawful excuse in the Metropolitan Hotel. “Taking into account that he had just come from Palmerston North where he had committed theft this was quite consistent with felonious intent," he said.

His Honour said he would allow the sentence imposed by Mr. Preston to stand.