Page:Report of the Commission Appointed to inquire into the Penal System of the Colony.pdf/20

18 # That the commitment order of the magistrates shall, in all cases, be for an indeterminate period, up to a maximum of 16 years, for boys, and 18 years for girls, but not less than twelve months shall be spent under strict discipline.
 * 1) After 12 months the superintendent of the Industrial School may recommend for apprenticeship any children who, in his opinion, appear to be sufficiently reformed. In all cases of apprenticeship the children must go to persons residing in the country districts only, and not in or near Perth.
 * 2) The superintendent or other governing authority should, from time to time, notify the Resident Magistrates in the various rural districts that certain boys are open to engagement or apprenticeship under the statutory conditions. Under no circumstances are any boys to be sent to persons of whom the Resident Magistrate does not approve.
 * 3) During detention at Rottnest all boys should be put to work improving the land, gardening, and out-door industrial occupation generally.
 * 4) Under no circumstances should boys under the age of sixteen be committed to prison; nor girls under the age of eighteen.

DISPARITY AND IRREGULARITY OF SENTENCES.

Mr. Tallack, in his "Penological Principles," calls especial attention to the manner in which the public sense of justice is outraged by the extraordinary discrepancy in the sentences passed for similar offences by different Courts, and he cites a number of cases illustrative of this point. He says:—"It is to be noted that the heavier sentences are not in general imposed by the superior or more intelligent class of judges, but chiefly by the provincial or rural magistrates." We have found much the same condition of things existant in this colony, but by whomsoever inflicted we think that the following sentences, taken almost at random from a large number of cases which have come under our notice, certainly reveal a striking discrepancy in the punishment awarded for practically the same offence in some instances, as well as between the punishment inflicted for some minor offences, as contrasted with crimes which are usually regarded as being of a more serious character.

Thus we find, for instance, that No. 10,463 receives ten years for larceny, whilst No. 10,530 only gets seven years for manslaughter. In the first-named case the offender, an unfortunate Asiatic, received two cumulative sentences of five years each, the practical effect being to increase his term of incarceration 40 per cent. beyond what it would have been under one sentence of ten years, although the offence was a comparatively trivial one, such as most European tribunals would have considered fully expiated by a very brief term of incarceration. We have called especial attention to this case in our Second Progress Report, considering, as we do, that while an injustice has been done to the prisoner the taxpaying public have in this case, as in many others, been penalised for no good purpose whatever. The contrast between the sentence passed on this unfortunate man and the seven years allotted to a prisoner found guilty of manslaughter after standing his trial for murder is sufficiently startling.

Then, not needlessly to multiply instances we see that No. 1,840 gets six months for larceny, whilst for the same offence No. 10,463 gets ten years. No doubt there are modifying and qualifying circumstances which have to be taken into account by the tribunals in all these cases, but it is nevertheless difficult to understand why in some cases robbery, accompanied with great personal violence, should be punished by a two years' sentence only, whilst a man, who was a first offender, but unlawfully received some stolen goods, got seven years as the penalty of his crime.

The obviously haphazard and irregular character of many of the sentences is one of the reasons which have led us to recommend that classification should proceed on the basis of the physical and mental capacity of the prisoner rather than upon the length of his sentence.

The only practical remedy for irregular sentences appears to us to be the constitution of a Court of Criminal Appeal, which should have the power to review all sentences passed.

We further desire to emphasise our previous recommendation that the criminal law should be codified.

SENTENCES—HOW TO BE IMPOSED.

With reference to the Court of Appeal proposed by us, we look forward to the time—although we do not regard it as immediately practicable—when the court, which finds a prisoner guilty, will have nothing whatever to do with the sentence imposed upon the prisoner.

When one looks carefully into the matter it is obvious that in the ordinary course of things all that the court which tries a man is really competent to do, is to say whether the prisoner at the bar has, or has not, broken the law. It knows nothing and can know nothing of the prisoner's mental or physical constitution, his congenital or acquired criminal tendencies, and a hundred and one other things which must nevertheless receive consideration if the mode of treatment of offenders against society is to cease to be purely empirical in its character.

As it appears to us, when a prisoner is on his trial there are two facts which have to be determined, or two questions to be answered. The first is: Did the prisoner do such and such a deed? That is for the jury to decide. The next point is: Did he, by the act which he is declared to have committed, break the law? That is a matter for the judge. If both these questions are answered in the affirmative, there remains for decision the very important consideration of the mode in which the offender is to be treated. The determination of this point is one for which the judge, who sees the prisoner for the first time for a few hours in the dock, has obviously no especial qualification.