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SECOND PROGRESS REPORT. To His Excellency Lieutenant-Colonel Sir Gerard Smith, Knight Commander of the Most Distinguished Order of Saint Michael and Saint George, Governor and Commander-in-Chief in and over the Colony of Western Australia and its Dependencies, etc., etc., etc. Sir,— We, the Commissioners, appointed by commission dated the 7th day of September, 1898, to enquire into the existing conditions of the penal system of Western Australia, and to report upon the method now in use for the punishment of criminals, their classification, the remission of sentences, and the sanitary condition of Fremantle Gaol, as well as to enquire into all contracts for supplies of food and other materials for use in the said Gaol, have the honor to submit our Second Progress Report as follows.— INDIVIDUAL CASES OF PRISONERS. "In our First Progress Report, we intimated that there were certain individual cases of prisoners to which we desired to direct the attention of your Excellency. Some of these cases have been selected by us as typical of various classes of offenders, in regard to whom the kind of punishment inflicted does not seem to be the best suited for their offence. Others we have taken because of peculiar and special features connected with them, such as apparently undue severity in the sentences, or other circumstances which seem to point to the desirableness of a revision of the sentences inflicted. "No. 10525.—OFFENCE AND SENTENCE.—Stealing from the person of a man unknown, five years.—This is a somewhat remarkable case. The prisoner was charged with assault and robbery. The charge of assault was withdrawn, and the prisoner was found guilty of robbery. The person alleged to have been robbed was not known to the Crown, and was not produced. Your Commissioners recommended the case of this prisoner to the Colonial Secretary for consideration, but the Attorney-General thought that his release 'would undermine the discipline of the Gaol.' Your Commissioners fail to see how the discipline of the Gaol would be affected by either the release or the detention of this prisoner. The only question for consideration in this case, as it seemed to us, was whether the prisoner would not have escaped conviction in the absence of a prosecutor, the person alleged to have been robbed, if the prisoner had been defended at his trial. The prisoner conducted his own defence with so little skill that he elicited the fact of previous convictions. The Attorney-General, in his minute 2562/98 speaks of the conviction as one for robbery with violence, but it was for robbery only. From the Crown Solicitor's remarks on the same document it is clear that the prisoner's undoubtedly bad previous record was the main element which led to his conviction. We have selected this as a typical case which opens up a very important point in practical penology, in regard to which there is room for much difference of opinion. Should the previous record of any prisoner have any weight at all at his trial? Theoretically it does not, as far as the jury is concerned ; but if, as in this case, the evidence elicited established the fact of previous conviction, it is only natural that the jury should be affected by it, and lead to the conclusion that the prisoner must be guilty of the offence with which he is charged. The evidence is then less critically weighed than would be the case where the prisoner had no previous record. It may, in the interests of society, be desirable that an old offender should be thus handicapped, but we are nevertheless of opinion that every charge should be tried strictly on its own merits, and without any regard to the antecedents of the prisoner. Lord Coleridge went further, and laid it down as a first principle that in every ideal criminal code each offence should be punished by the infliction of the penalty provided for that offence, and without regard to any previous commission by the person convicted of an offence of similar character. In other words, the prisoner should not be specially punished because he has been punished before. On the contrary, he should, whether he, for instance, steals a watch for the first or twentieth time, pay the penalty for watch-stealing, neither more or less. Your Commissioners are not prepared to go quite as far as this, but would strongly advocate the formulation of a code which would prescribe the punishment for every class of offence in a manner which would lead to greater uniformity in sentences than now exists. "No. 3378.—LARCENY, TWO YEARS.—This is a case which appears to require further investigation. The prisoner was found guilty by a jury at Coolgardie, but from a report of the proceedings, the verdict was arrived at only after considerable hesitation. The prisoner bore an excellent character up to the time of his conviction, the evidence against him being mainly that of a young girl who, it is urged on his behalf by certain petitioners, might easily have made a mistake as to the identification of a person whom she saw in the dark of the evening. The prisoner's own statement to the Commissioners is as follows: —'I was sentenced to two years for alleged larceny at Kalgoorlie. I had nothing to do with the robbery, and, had I the means to pay expenses for witnesses, could have proved an alibi beyond doubt, as, at the time of the of robbery, I was away at Boulder City. The cause of my conviction was that I had thrown a bottle at a policeman named Anderson, who came sneaking about my place one night in the dark. I was charged with the assault, but discharged by the magistrate, who remarked that it served the policeman right, as he had no business on my premises. Anderson, however, threatened to "fit me," as he said, before long. Accordingly, I was charged with having stolen a cash-box from Hans Kinsman, and found guilty on the evidence of a little girl of 14, who swore that she saw me enter the window of the premises where the cash-box was. My lawyer was unwell on the day of the trial, and the Crown Prosecutor pressed the matter of my throwing the bottle at the policeman (Anderson), although it had nothing to do whatever with the alleged robbery. This prejudiced the jury. Since I have been in Gaol a policeman named Whelan has been to see me, and told me, in the presence of Acting Chief Warder Webster, that he knew that I innocent, and that he also knew now who was guilty. He added the it was my own fault that I was in Gaol, as I should have told the police at the time who it was who committed the robbery. I had good reasons to know who it was, but I did not consider it necessary to express my suspicion concerning a man who was spending money freely at my place in the course of business. Was it my duty to tell the police that a man was at my place spending money freely, and that I did not think that he earned the money? I understand that Whelan is leaving the police force, and that both he and Anderson know perfectly well who the real criminal was. I should like to have my innocence proved, but should be even more glad to get out of the colony. I have the means, or could get the funds in 24 hours, to return to my wife and two children in Tasmania. I have never been in gaol before. I have got a five years' character, which I produced in court. I was a mining labourer, and also worked as engine-cleaner for Mr. Hedges, the contractor. I was well known as a steady man among the contractors for railway work. On the occasion when Whelan saw me, Mr. Webster remarked that he could not properly hear all that Whelan was saying, and told him to speak up. Acting Chief Warder Webster, when examined by us, said :— I remember Constable Whelan having an interview with No.3378. I was present. I heard Whelan say, "I will put that property all right for you. I am leaving the force." Something was said before that by Whelan, which I could not hear. He was talking in a conndential and low tone, and I told him to speak up. The prisoner, commenting on this, said : What Acting Chief Warder Webster says is correct as to the words he heard. I understood him to mean that he would see me righted. He had previously, in a low tone, told me what I have said. Prisoner No. 3504 stated in regard to the same matter : Whelan, a member of the police force, told me on one occasion that 3378 was innocent, and that he was coming down to visit him at the Gaol and tell him that he knew this. He added that he was sure that he could get No. 3378 out of the Gaol, and he would do his best with that object. No. 10463.—LARCENY, TEN YEARS.—This is an Asiatic, who was brought to this colony under indenture. He received two cumulative sentences of five years each. The practical effect is to increase his term of incarceration by 40 per cent. beyond what it would have been under one sentence of 10 years. Section 24 of Act 61 Victoria, No. 27, prescribes the responsibilities of employers who indenture labourers of the prisoner's class. The superintendents of prisons throughout the colony should be required to notify to the Colonial Secretary whenever an indentured Asiatic is about to be released from custody in order that the provisions of the Act above quoted may be enforced. This sentence strikes us, in the whole circumstances of the case, as being a very severe one. No. 2920.—In reference to this case, in the course of a letter to the Colonial Secretary, we said:—The Commissioners respectfully suggest that the sentence might be reduced by making the six months cumulative in irons, which he received inside the Gaol, concurrent. This recommendation, having been referred in the usual course to the law officers of the Crown, the Crown Solicitor said:—'Unless it is desired to turn loose upon the community a lot of ruffians, I cannot see any reason for reducing this man's sentence.' And the Attorney-General added, 'A man who has a bad record in Gaol is not a fit subject, in my opinion, for clemency.' The point of your Commissioners' recommendation appears to have escaped the attention of the learned law officers of the Crown. The Imperial law does not, in any circumstances whatever, permit of a cumulative sentence being inflicted inside the Gaol. It is possible that the Western Australian law does permit this, and, in fact, one witness (Mr. Fairbairn) was of opinion that, at any rate in the case of convicts, the necessary statutory authority existed; but as to this your Commissioners are not perfectly satisfied. In any case, they are of opinion that it is extremely undesirable to give a magistrate or visiting justice power to extend a sentence inside the Gaol beyond the term previously publicly awarded in open court. We have come across one or two cases where a small original sentence has developed by cumulative and subsequent sentences in Gaol into a term of incarceration, such as was never contemplated by the judge who passed the original sentence on the prisoner. We recommend that as provided by the New Zealand Prisons Act of 1882 offences within prison walls should be divided into two classes, major and minor. The former should be dealt with only in open court, and the latter, as at present, by the magistrate or visiting justices in the prison. No. 3230.—On November 13, 1898, we invited the attention of the Colonial Secretary to the case of the prisoner, who claimed that on that date he ought to have been already out of Gaol, whereas, according to the official calculation of the scale of the remissions allowed, he had still to serve until the 28th of the same month. This was a matter which gave us considerable trouble, because nearly every prisoner complained that his own computation of the remission due to him differed from what was awarded to him by the authorities ; and for our own part we found it impossible to reconcile the official scale of remissions submitted to us with the calculations of the Gaol officials in any particular case. Eventually it transpired, incredible as it may seem, that the scale of remissions officially exhibited to the prisoners for their information was not the one on which the Gaol authorities actually calculated their remissions. The practical effect was to involve the state in the cost of maintaining almost every prisoner for a longer period than would have been the case under the scale exhibited in the Gaol, which, of course, was the only one of which the prisoners could have official cognisance. Incidentally, it transpired that if a prisoner is reported for some matter which the visiting justice deems too trivial to merit punishment, the prisoner nevertheless gets seven days knocked off his remission, not because he has done anything wrong, but because he has been reported. This punishment is inflicted without the direction or knowledge of the magistrate. It seems to your Commissioners monstrous that a man who is simply cautioned by the magistrate should virtually receive seven days' imprisonment because he is charged; but that is exactly what the present practice comes to. It is before all things important that prisoners should at all times feel perfectly certain that they will in any and every eventuality be justly dealt with, and a gross injustice to this class must always prove a fruitful source of disorganisation, discontent, and want of discipline. The Colonial Secretary has now adopted a revised scale of remissions, under which no remission will be docked in cases where a first caution is only given. No. 10507.—In this case the prisoner has done about two years out of an original five years' sentence for larceny, and, nevertheless, has still about four years and three months to do by reason of cumulative sentences. He originally stole some articles under the value of £5. We recommended his case to the Colonial Secretary as one where the clemency of the Crown might be advantageously exercised, and the Attorney-General, to whom the matter was referred, has promised to give favourable consideration to our recommendation if the prisoner continues of good behaviour for the next six months. No.10479.—This case has been selected by your Commissioners as typical of a class where the sentences appear to them to be very excessive. Of course, it may fairly enough be said that it is purely a matter of opinion whether a sentence is excessive or not in any particular case. Judged by the standard of sentences awarded in England for like offences, the term of incarceration in this case is very long. Even if we do not go outside the colony for a standard of comparison, we find that for 'threatening to kill' this person received a sentence of eight years, being practically the same sentence as another prisoner is under-
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