CUMULATIVE SENTENCES.

Akaroa Mail and Banks Peninsula Advertiser, Volume 4, Issue 382, 2 April 1880, Page 3

CUMULATIVE SENTENCES.

The London Times contains a useful statement of the points -which will be brought into issue when the " Claimant's " case comes into Court again on writ of error, for which the fiat of the Attorney-General has now been issued. Orton was convicted on two counts of an indictment for perjury, and on each charge he was sentenced to the extreme penalty of the law—namely, seven years' penal servitude—thus making the whole duration of his punishment fourteen years. But it is now contended on his behalf that the several terms of penal servitude to which he was sentenced ought to have run concurrently, and should not be made to follow one another. A further point which is raised in his favor, but which is purely technical in its character, is that the sentence passed on him was informal. The Statute under which he was convicted provides that a person found guilty of perjury may be sentenced to seven years' penal servitude in addition to any term of imprisonment to which he might have been liable at common law. . But this enactment is, on the face of it, merely permissive ; although Mr Justice Brett took the precaution to sentence the Claimant's coadjutor, Luie, to a week's imprisonment before his term of seven years' penal servitude was to commence —a refinement which Mr Justice Mellor seems to have regarded as unncessary with respect of the Claimant himself. Orton's case is that the several assignments of perjury against him relate substantially to the single offence that he falsely represented himself on oath to be Sir Roger Tichborne ; that if he could have been sentenced to separate terms of penal servitude on two counts of the indictment against him charging him with the same perjury at different times and places he might have been similarly charged on any greater number of counts, and, if convicted and sentenced on each of them, he might have been sentenced (supposing the sentences were cumulative) to any number of years penal servitude ; and that, the law having provided seven years' penal servitude as the maximum penalty for perjury, it could never have been contemplated that the term should have been extended at the discretion of the pleader who draws the indictment and the judge who passes sentence to an indefinite number of years, far exceeding probably the remainder of the convict's life. On the other hand, it is contended that the crime of perjury is one admitting of many degrees of heinousness, and that the maximum penalty is frequently inflicted for offences which are trivial as compared with those of the Claimant; while, although it is true that it would be within the range of technical possibility to wrest the law to oppressive ends by means of a multiplicity of assignments of perjury and cumulative sentences for them, this is not an instance in which anything of the kind has been done. Orton was indicted for perjury on only two separate occasions—in the Court of Chancery and in the Court of Common Pleas, and on each of these occasions he perjured himself over and over again; that he might have been separately indicted, tried, and convicted for his perjury on each of these occasions instead of being indicted for them in two counts of the same indictment, and so tried and convicted on each, and that had he been acquitted on one indictment he could not have pleaded his acquittal in bar to the other. But the principle is the same whether he was convicted of these distinct offences on different indictments or on different counts of the same indictment, and therefore the sentence for two terms of seven years' penal servitude would be legal, and could only be carried out by making them successive, while to make them concurrent would have been to make the second nominal and so absurd. Against this it is maintained that the joinder of the two charges of perjury in the same indictment shows they relitted to the same offence, which is the offence of perjury, to which the law assigns the maximum penalty of seven years' penal servitude ; that if parliament had intended a sen-

tcnce for more than seven years' penal servitude to be passed in the same prosecution, it would have given Ihe power to inflict such a spntcnco directly, and not in the way of successive sentences on different counts ; that if tlu> maximum punishment for the .offence of perjury Im> insufficient, it ought to be increased l>v Statute, and not by judicial contrivances; that successive sentences siro illegal, i< r the second and nil subsequent sentences are prospective and to commence at future periods, and that there is no power in law to sentence a prisoner to seven years' penal servitude to commence seven years hence ; and that such sentences are also illegal, on general principles, applied to a Statute which only gives the power to sentence to penal servitude for seven years. All these objections were taken on tho part of the Claimant immediately after his conviction and sentence, and wore overruled on appeal by the Court of Queen's Bench. But by this decision and another to which the Times refers, in which the legality of cumulative sentences has been upheld, the Court of Error will not necessarily be bound, and will be merely guided by the arguments to be adduced before it, in which, of course, the question of the Claimant's guilt or innocence will not be opened, as in some quarters it seems to be supposed or represented.