Recent Judgment Heavier Penalty Because Of Previous Convictions

Press, Volume C, Issue 29516, 18 May 1961, Page 20

Recent Judgment Heavier Penalty Because Of Previous Convictions

IBy a Legal Corresvonaent}

Before Mr Justice Haslam, at Wellington. This judgment is of importance in that it determines the legal position of a person given a heavier penalty than wotfld otherwise be properly imposed for the offence of which he is then convicted by reason of his previous convictions for specified offences. It also clarifies the manner in which such previous convictions must be placed before the Court.

This was an appeal against the sentence of 12 months’ imprisonment imposed in the Magistrates’ Court, Wellington, on February 15. 1961.

The appellant was arrested on warrant, which was issued after an information had been laid charging him with the theft of sundry articles of the total value of £l4/7,'-. The information described the charge as “an offence punishable summarily: Crimes Act 1908 5.247 (e).” Agreed Facts The appellant was charged before Mr Scully, S.M., with theft of goods to the value of £l4/7/-. When charged he admitted stealing a bag, but denied stealing the other goods. He was given the election for trial by jury and also shown a list of his previous convictions. Having denied stealing the other goods, he was remanded for a week. At the hearing a week later he was again charged with stealing all the goods, given the election, and pleaded guilty. He was then shown his list of previous convictions. He admitted the convictions. He did this from the dock, not from the witness box. He was convicted and remanded for a week for a probation officer’s report. A week later he appeared before the Court and was sentenced to one year’s imprisonment. The appellant was not represented at any time during the Magistrates’ Court proceedings. It was agreed between counsel that neither at the time of sentence nor at any prior appearance before the Magistrates’ Court for the charged offence was the appellant given notice of the fact that, on account of his previous convictions, he was liable to a heavier penalty than that actually provided under the section of the statute which appeared in the information. Two Grounds

The appellant’s counsel based his argument on the appeal on two purely legal grounds, and did not criticise the sentence as ■ intrinsically too severe.

First, he contended that where previous convictions for a like offence render an accused person liable to a greater penalty in the Magistrates’ Court than could otherwise properly be awarded, the defendant must be strictly charged with such earlier convictions and asked to plead thereto; and that the greater punishment can be awarded only where the accused formally acknowledges the correctness of such convictions in his plea, or where, after his disputing the accuracy of such items on his list, proper proof thereof is given to the satisfaction of the magistrate As an. independant argument, the appellants counsel submitted that the magistrate had no jurisdiction in any event to invoke 5.255 of the Crimes Act 1908. upon which he had relied in this case in passing the sentence on the appellant of 12 months' imprisonment, and he could not exceed the maximum period of six months’ imprisonment prescribed in 5.247 (e) of the Crimes Act 1908. under which the accused was charged in the information. Mr Justice Haslam dealt first with the latter contention. It entailed a consideration of the recent expansion of the statutory powers of a magistrate to deal summarily with indictable offences, of which the information laid here contained an example. Section 6 (1) of the Sum. tnary Proceedings Act 1957

gives a Court presided over by a magistrate summary jurisdiction “in respect of the indictable offences des. cribed in the enactments specified in the First Schedule to this act.” The passage : quoted from 5.6 (1) refers to specified “enactments.” which, in his Honour’s opinion, must mean only such particular sections as describe named offences and are contained in the statutes designated in the First Schedule to the Summary Proceedings Act 1957. His Honour held that 5.7 (which deals with the consequential powers of imposing punishment) indicates that, whereas the preceeding 5.66, by incorporation with the First Schedule, lists the offences over which the magistrate can excercise his summary powers the corresponding power of the magistrate to impose penalties must be looked for not in that Schedule, but in 5.7 itself. Paragraph (a) of the proviso to 5.7 empowers him to impose any term of imprisonment exceeding three years, but in no in. stance beyond the maximum term which the Supreme Court could impose after conviction on indictment. So long as the magistrate keeps within those limits in sentencing a defendant on conviction for one of the “indictable offences specified” in the First Schedule, he does not (the learned .judge held) exceed the extended powers conferred upon him by the Summary Proceedings Act 1957. but imposes a sentence within the ambit of his statutory jurisdiction. Previous Convictions His Honour, therefore rejected that ground for the appeal. The other question for con. sideration was whether, before the magistrate had jurisdiction to exceed the maximum penalty, of six months' as provided in 5.247 <e) of the Crimes Act 1908. the defendant should have been charged with his previous convictions, with or without a formal plea in the information. Mr Justice Haslam said that the phrase “or admitted by him" in subs. (1) (b) of 5.69 of the Summary Proceedings Act 1957 indicates that an admission by the defendant of the previous convictions is sufficient to dispense with formal proof and is a permissible alternative to receiving evidence. The accused admitted the accuracy of his list of previous convictions, which included prior convictions of theft. Furthermore, when the proof or admission of such previous convictions entitles the defendant to a right of election to be tried by a jury, not only must he be given such right in pursuance of para. (c> of 5.69 (1) but the information must be amended “so that it discloses the previous convictions.” In the event of his electing to be tried by a jury, the procedure contained in " 5.66 is to be followed with the necessary modifica. tions. The express provisions, in the circumstances enisaged in para. <C>, for an amendment to an information in order to disclose the previous eonVictions, indicates by implication that where para. <c) does not apply, such disclosure need not be made in the information.

As a matter going to the substantive jurisdiction of the Supreme Court, the election of trial by jury clearly called for the special treatment given in subs. (1) (c).

His Honour held that it was sufficient that by unequivocally admitting the accuracy of a list which contained previous convictions under 5.247 of the Crimes Act 1908, the appellant rendered himself liable, by virtue of 5.69 of the Summary Proceedings Act 1957, to the greater pen. alty prescribed by 5.255 of the Crimes Summary Proceedings Act 1957. The learned judge regarded 5.69 as a complete code on the topic of previous convictions rendering a defendant liable before a magistrate to a greater penalty than can otherwise be imposed. The comprehensive terms of 5.69, his Honour added, preclude previous convictions in such cases as the present from being elevated to an essential ingredient of the offence. Evidence of the previous convictions may be received and. unless also proved or admitted, it does not render the defendant liable to the higher penalty. Only when the fact of such conviction of itself confers a right of election which is exercised, must the information be amended and made to include such material. The whole tenor of 5.69 including the provision under subs. (1) (c) for vacating the conviction already made, indicates that the earlier criminal history of the defendant must not be before the Court until after conviction on the information. A specific reference to the accused’s previous convictions as required by 5.69 (1) (c) served the purpose of keeping the information in line with the form which the indictment would take in the Supreme Court as en. visaged in 5.398 of the Crimes Act, 1908 Mr Justice Haslam accordingly rejected both grounds upon which the appeal was argued before him; but in so doing, he expressed his thanks to counsel tor their helpful submissions. The appeal was dismissed. Counsel for the appellant, Jeffries; for the police. Ferny hough. , Solicitors: for the appellant, Martin, Murphy and Jefferies (Lower Hutt); for the respondent, Crown Solicitor (Wellington).