THE JUDGE EXPLAINS

Sun (Auckland), Volume I, Issue 272, 7 February 1928, Page 9

THE JUDGE EXPLAINS

Difficulties of Sentencing REPLY TO PRESS CRITICISM Echoes of Notable Cases DECLARING that it was “quite right and proper” that judges should be subject to newspaper criticism, Mr. Justice Reed took the opportunity of replying to some of that criticism in his charge to the grand jury at the Supreme Court to-day.

J.» EFERRING especially to a case of negligent driving of a motor-car, which was heard at the last session, His Honour said he was firmly convinced that heavy sentences would only result in more acquittals by juries. “Gentlemen,” he said, “ a Judge cannot join in a newspaper controversy as to his sentences. I make no apology, therefore, for endeavouring to place before the public some of the difficulties that a Judge is faced with in endeavouring to carry out his duty to the best of his ability.” Explaining that he intended to make some observation on the administration of justice. His Honour said: “The object ever to be aimed at is the suppression of crime. At one time it was

thought that could only be effected by the infliction of severe, penalties. The death sentence was imposed for crimes that nowadays would, in many cases, be met by admitting the offender to probation. As a deterrent it was a complete failure; crime was rampant. Judges and juries seized upon the slightest pretext to find a prisoner not guilty. One is amazed, i:a reading the old reports to find upon what technical trivialities verdicts of not guilty were returned. The failure to dot an ‘i’ or cross a ‘t’ in an indictment was almost sufficient to cause the quashing of the indictment and the release of the accused. “INCREASING HUMANITARIANISM”

“And as the brutality and savagery of the middle ages gave place to an increasing humanltarianism, acquittals upon purely technical points not going to the merits of the matter, became more and more common until the death sentence, except for extreme cases of violence, was abolished. In modern days students of criminology have discredited entirely the view that severe penalties are essential to the suppression of crime. “Many people indeed think that in the reaction the pendulum has swung too far over the other way and that we treat our criminals with too great leniency. “This is not, however, the view of those who have devoted time and attention to a consideration of the problem. The old Mosaic law of an eye for an eye and a tooth for a tooth is finally abandoned. Revenge by society upon the offender against its laws is no longer a basis of punishment. The modern view is to endeavour to reform the offender, while not neglecting the important consideration of deterring others from committing like offences. BROAD PRINCIPLES “The nature or degree of punishment must, therefore, be regulated by two considerations (1) the reform of the individual, (2) the necessity of deterring others from like offences. These considerations sometimes conflict. One may be satisfied that a particular offender, if treated leniently or admitted to probation, would not again offend; and if that were the only consideration full effect could be given to it; but it may be that the crime is of such a nature that punishment must be inflicted, or it may be a class of crime that is on the in-c-ease, and in that case it may be necessary to disregard in the interests of the public, the detrimental effect of imprisonment upon the individual, and to inflict such a degree of punishment as may be a deterrent to others. Those are the broad principles which are applied by judges in fixing the measure of punishment; but you cannot have an inflexible rule which will not yield to special circumstances. Sometimes these circumstances are such that to follow the general rule would be to sacrifice common sense to the pedantic adherence to a rule or practice. “It is that class of case that without a complete knowledge of the circumstances, causes uninformed persons to criticise what they are disposed to regard as the inconsistency of sentences. t “It is quite right and proper that the sentences of a judge should be subject to the criticism of newspapers. It would be an unhealthy state of affairs if a judge's sentence or judgment should be sacrosanct. NEWSPAPER CRITICISM "Leading newspapers, with a sense of responsibility attaching to the views they express, seldom wantonly criticise sentences, knowing full well that they cannot be in possession of all that is known to the judge, but there have been exceptions. I have had experience of the criticism of alleged inconsistency of my sentences.” Giving an instance of the criticism, his Honour said that he had granted probation to a sharebroker who had

misappropriated £l5O. As a rule breaches of trust were visited by sentences of imprisonment; but in this case representations were made by the probation. officer, which caused his Honour, “with some doubt,” to grant probation. At the same session a man was convicted of receiving stolen goods valued at £150: A police report showed that there had been a series of breaking and entering cases in the city and that the man was the head of a gang of thieves, “known by the police to he responsible for these crimes,” the man was sentenced to two years’ imprisonment. There had been criticism by a newspaper oil the discrepancy. “THROWING DOUBT” “Criticism of that sort does no good,” continued his Honour, “and even works harm among unthinking readers as tending to throw doubt on the impartiality of the Bench; there was a veiled insinuation that the social position of the respective transgressors affected the sentences. I was a complete stranger to the town and knew nothing of either party. ' “The most difficult class of case to know what to do with Is that of a person found guilty of causing the death of another by negligent driving of a motor-car. I have tried dozens of these cases, and it is a class of case in which juries are very averse to convicting. As a rule the alleged offender is a decent man of good character, and juries are loth to find a verdict which may result in imprisonment.”

The amendment of the words of the charge from “manslaughter” to "negligently causing death” resulted in more convictions being obtained, as the words did not sound so formidable to juries. Heavy sentences, he was convinced, would only result in more acquittals. CARELESS MOTORISTS “Every one desires to suppress the careless and negligent motorist; but I am convinced that the most effective method of doing so is not by imposing a heavy sentence, when conviction is obtained for causing death by negligence, but first by increased vigilance in detecting and the infliction of adequate punishment for negligent driving in the streets, whether resulting in an accident or not, and secondly, by the certainty of conviction following when through negligence a fatal accident does happen.” Magistrate were doing excellent work in teaching motorists to drive with care. If convictions could be secured in every case where the fatal injury was proved to be due to Negligence it would go a long way to teach carefulness in the handling of motorcars. “A certainty of conviction is a far greater deterrent than an occasional exemplary sentence. Juries have to be educated to trusting the judges not to impose excessive penalties. Once that is achieved convictions will more readily follow. “SPECTACULAR CASES” There was an added difficulty in cases of a ‘spectacular nature,’ which was written up by the papers. The public was inflamed by the possibly alleged callousness of the offender. At the trial much which had been suggested was incapable of proof. This created a reaction in the minds of the jury, who expected to hear proofs of inexcusable conduct. The Crown failing to bring such proof, the effect upon the minds of the jury was to excite sympathy with the accused to the extent even of acquitting him for fear of a harsh sentence. Last session there was an instance of this. “A young man was charged with manslaughter in circumstances, which, if the story told in the newspapers wa- to be believed, was as gross and callous a case as could he conceived. The effect of the sworn evidence upon the jury was that they absolutely declined to convict of manslaughter and only after nearly five hours’ retirement agreed to a conviction for negligent driving, but only then on being satisfied that the offence would be met by a fine.

“Although judges fix the penalties, juries have a most, effective way of regulating the scale by refusing to convict when they consider sentences are excessive. It is upon record that in a town in New Zealand, that owing to a penalty imposed in a certain case being considered excessive a long series of acquittals followed and even the Grand Jury refused to return True Bills. “No doubt this is very wrong, but the fact must be recognised that a Judge is not entirely a free agent in the matter of imposing penalties and must defer to a considerable extent to the views of juries who try the cases. I have heard it put that a Judge should do his duty regardless of the consequences and that if his sentences result in acquittals then let the responsibility rest with the juries. “This sounds very well, but after all juries are part and parcel of our judicial system, and although they are going outside their functions in attempting to regulate penalties, they have the power and if, as must be admitted, the predominant duty of both Judge and jury is to protect the public by punishing offenders and deterring others from crime, it appears to me to be the outstanding duty of a Judge to endeavour to .secure that, while the innocent shall not be convicted, the guilty shall not escape. THE JUDGE’S DUTY “If through a stiff-necked adherence to the view that convicted offenders must be severely punished juries decline to convict, then a judge is losing sight of what I say is his 'outstanding duty to the public—to so act in his office, that, at the least, obstacles shall not be placed in the way of bringing offenders tq justice. “I have never heard it suggested that so far as New Zealand judges

are concerned that they are actuated by anything but a desire to do their duty,” he continued. A judge had far greater experience in dealing with criminals than any of those who adversely commented upon some isolated sentence and also more information, as niost criticisms were directed against the leniency of sentences, Members of juries reading that criticism might be induced to acquit. “Experience proves that fear of the imposition of what a jury may regard as a heavy penalty has more than once resulted in a verdict of not guilty. Injudicious criticism may therefore often assist in defeating justice.”