Page:Report of the Commission Appointed to inquire into the Penal System of the Colony.pdf/9

 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 laborer, 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:&thinsp;—'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 confidential 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. 3604 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.——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 laborers 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:&thinsp;—'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:&thinsp;—'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 this 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 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 favorable 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