Page:Report of the Commission Appointed to inquire into the Penal System of the Colony.pdf/21

19 Strange, as at first sight, this proposition may appear, the idea is by no means novel. It really underlies, although perhaps not in definite terms of expression, the conclusions of all the most prominent criminologists.

Its germ is to be found in the dictum of Beccaria, who, in 1770, in his Dei Deletti e delle Pene, laid down the principle that "The office of the judge is only to pronounce whether the action of the prisoner is contrary or conformable to the law."

It will be asked: Who, under those circumstances, would award the sentence?

This would be done by a Board of Medical Jurists. The prisoner would, by order of the court, pass into custody for an indeterminate period. The board would, after due examination from time to time, decide whether and when the prisoner was in the interests of society and of himself a fit subject for release. It would further decide the class of institution in which the prisoner should be treated.

As illustrative of the anomalies, which are not only possible but actually occur, under the present system, we would quote a case cited by His Honor Mr. Justice Bundey as having happened in South Australia:—

"A recent case in this colony forced this point upon my attention On the trial it was proved that no less than five previous convictions for a like offence had been recorded against the offender. Long terms of imprisonment had been imposed. On every previous occasion the lash had been awarded, the total stripes on the five convictions amounting to 70, 50 of which he had actually undergone, the remaining being countermanded solely because of the danger to his life their infliction would have entailed. Up to this time his only plea had been one of "not guilty." On this being determined against him his punishment followed as a matter of course. To an ordinary observer there was nothing in his appearance or manner to indicate insanity of any kind; but of the fact of the commission of the offence in each case there could be no doubt whatever. At the last trial his friends raised the plea of insanity. The Crown Law officers very properly had him examined by the medical men who preside over the asylums here, and independent medical testimony was also called, and his insanity upon this particular point was established to the jury's satisfaction; the most startling feature of the medical evidence being that men afflicted with this particular kind of insanity are almost invariably among the purest-minded and purest-living during their lucid intervals, and they suffer intense mental torture for what they have done when their mental balance is restored. If this afflicted man was insane on the last it is fair to infer that he was on the previous occasions Had the prisoner in the case mentioned been so treated from the first, much suffering on his part, much annoyance to his fellow men, and much expense to the country would have been spared."

TICKET OF LEAVE REGULATIONS.

In our First Progress Report we advocated the entire abolition of the regulations now in force as being by common consent entirely obsolete. For these we would substitute, wherever it may be deemed desirable, in the case of prisoners released before the completion of their term of sentence, a system of police supervision on the lines of the English "Prevention of Crimes Act of 1871" and the "Habitual Offenders Act of 1869." Under these Acts the prisoner has to report himself to the police once a month. A central register of criminals is kept. This is printed and distributed to all police forces and prisons all over the kingdom. In addition, a "Distinctive Marks Register" is also printed and distributed to facilitate the identification of suspects.

—A very desirable accompaniment to any system of dealing with criminals is a sound method for their registration and recognition. The system of M. Alphonse Bertillon is now being adopted by many countries—and the carrying out of this mode, although most effective, takes but little time, and requires no special training or intelligence.

CHARGEABILITY OF EXPIREES.

We have been informed by Mr. Longmore, Inspector of Charitable Institutions, that there were on 15th March last 195 expirees at the Mount Eliza Depot, and this may be taken as being about the average number. The cost of the maintenance of these persons falls very heavily, and, as it appears to us, unjustly upon Western Australia. The cost of these expenses is approximately £4,500 a year.

The mode of apportionment between the Imperial and Colonial Governments is prescribed by despatch from the Secretary of State dated 14th May, 1874. That despatch lays down the following rule:—"Any convict who, within three years of becoming free, either by expiration of sentence or by the receipt of a conditional pardon, shall be convicted of an offence for which he is sentenced to a punishment of two years or upwards, shall be maintained at the cost of the Imperial Government; but no claim whatever shall be admissible upon the Home Government in respect of the punishment of a convict for any fresh crime which he may commit after the lapse of three clear years from the date of his becoming free." Then, as to pauper expirees, the provision is:—"If for a period of ten years after becoming free a man shall have earned his own living, without ever becoming a burden on the public, then the Imperial Treasury shall be altogether free from liability about him, and any subsequent charge on his account must fall on the colony and not on this country, whether or not he may be disabled by some organic disease under which he labored whilst still a prisoner."

There are, at the present time, only about 60 persons in respect of whom claims, if and when they arise, can be established against the Imperial Government, but to these must be added 17, who are in the Lunatic Asylum and who are paid for by the Home Government.

We are of opinion that steps should be taken to urge upon the Home Government the injustice of throwing the burden of the cost of all these expirees on West Australia. We also feel grave doubt as to whether a large proportion of the expirees referred to above would not on investigation be found to be already properly chargeable under the terms of the Home Secretary's dispatch of 14th May, 1874.

DIET.

Necessarily, a very great deal of our time has been occupied in enquiring into the food supply of Fremantle Gaol. This was a point upon which nearly every witness, whether specially invited by us or appearing as a volunteer, had something to say.