# Report of the Commission Appointed to inquire into the Penal System of the Colony/Second Progress Report

Perth, Western Australia: By authority: Richard Pether, Government Printer
SECOND PROGRESS REPORT.
To
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 BASES 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 The charge of assault was withdrawn, and the prisoner was found guilty of robbery.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 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 Goal 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 was innocent, and that he also knew now who was guilty. He added that 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 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: —'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.—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 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: —'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 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 ​undergoing for actual murder. He has already served over three years, and we wrote to the Colonial Secretary recommending the case for the exercise of the clemency of the Crown. Our recommendation has not met with the approval of the law officers of the Crown. It must be admitted that the explanation of what we, rightly or wrongly, consider to be a heavy sentence is to be found in the past career of the prisoner and the previous offences of which he had been punished. In this connection your Commissioners would again call attention to the dictum of Lord Coleridge, that every offence should be considered on its own merits, and without reference to past offences, which have been expiated by appropriate punishment. We do not desire to push this point too far. On the contrary, it seems to us that if first offences may fairly be treated with leniency it logically follows that subsequent offences may fairly be treated with greater severity. Nevertheless, as it seems to us, a sentence of eight years' penal servitude on an old man like the prisoner, for "threatening to kill," is beyond the requirements of the case.
"No. 10,514.—Assault and Robbery, Seven Years.—In this case the prisoner, a man of previous good character, become accidentally associated (while looking for work at Bunbury at about the time when the alleged offence was committed) with a man known to the police. We recommended the case as deserving the consideration of the law officers of the Crown, and we regret that the Attorney-General does not share our view of the matter. Both the Attorney-General and the resident magistrate who tried the case attached great importance to the fact that the man assaulted nearly lost his life. Your Commissioners never doubted the seriousness of the offence, which was indeed apparent. The doubt in our minds, and one which still lingers, is whether the prisoner ever committed the offence of which he was found guilty. Our chief object in calling special attention to this case is to point out what appears to us to be the extreme undesirableness of trying cases of this serious nature in small country townships, where the inhabitants are naturally prejudiced against any stranger who is arrested on suspicion, unless the trial is presided over by a judge of the Supreme Court on circuit, as is the case in all the other colonies. If, on the score of expense, the Government deems it expedient to adopt this system throughout the colony, it might nevertheless be immediately enforced at the centres of population which are connected with the railway system. If the judges of the Supreme Court are unable through pressure of work to find time to go on circuit, the Government should consider the desirableness of appointing a district judge, with jurisdiction in criminal matters, and a limited jurisdiction in civil cases, thus greatly reducing the pressure of civil business, which is now sent up from country towns.
"No. F 3/67.—Forgery, Five Years.—In our comment on this case to the Colonial Secretary, we said:—'This is not so much a case where the circumstances call for any special sympathy for the offender as it is one typical of a class of very long sentences, which, in the result, are neither deterrent, reformatory, nor punitive. What punishment there is falls mostly upon the taxpayers.' We are glad to note that the Attorney-General also regards this sentence as severe, and undertakes to recommend the prisoner for a substantial reduction of the times of incarceration, if her conduct continues good during the next six months.
Nos. 10544 and 10545.—Unnatural Offences, Ten and Seven Years Respectively.—We have directed the attention of the Colonial Secretary to these cases. They are mere lads. The characters of their offences has rendered it undesirable that they should be associated with other boys in the Gaol, while their youth renders constant companionship with older and hardened criminals equally objectionable. On the whole, we are of opinion that it would be desirable to place these lads under police supervision outside the Gaol. They are more likely to develop into useful citizens if they work under police supervision for their own living than if at the cost of the taxpayer they spend the whole of their early manhood in Gaol. In this connection we may state that we are very strongly of opinion that the Fremantle Gaol is a most undesirable and unsuitable place for the incarceration of youthful prisoners. There is no suitable employment for them, and the one hour a week of schooling which they receive is practically worthless as an educational process. We recommend that all offenders under the age of twenty be removed from Fremantle to Rottnest Reformatory, in regard to which institution we propose as a result of personal inspection to offer some comments at a later stage.
"No. 2326.—This is a typical case of a youthful offender (age about twenty) who commenced a short sentence for some trivial offence, and afterwards was flogged for absconding. He appeared to your Commissioners to be rapidly deteriorating physically, morally, and mentally. We recommended his release, and the Executive has been pleased to discharge him from Gaol.
"No. 2595.—This prisoner is a very young man, undergoing sentence for a second offence of robbery. In this case the Commission when writing to the Colonial Secretary, said, 'This prisoner is a very young man. He is under sentence for a second offence of robbery, committed on his previous discharge from Gaol, when he was destitute. Your Commissioners respectfully recommend that this prisoner's friends be communicated with, and that if they are willing to take care of him and remove him he should be discharged.' The Crown Solicitor, commenting on our recommendation, said, 'The Commission apparently recommends that the prisoner be discharged because he is a young man, and has been twice convicted for offences against property. I really do not know what process of reasoning the Commission adopts in order to come to this conclusion.' We are equally at a loss to understand by what process of reasoning the Crown Solicitor deemed it necessary to subject our very serious and specific recommendation to comment, which is only saved from being flippant by being altogether irrelevant. This is one of a numerous class of cases where a prisoner comes from another country, and has relatives, who, in our opinion, ought to relieve the Western Australian taxpayer of the responsibilities of his maintenance. Our recommendation was that those relatives should be communicated with in order that their wishes might be ascertained, and that if they would take care of him and remove him from this colony he should be discharged. We are still of the same opinion as to the desirableness of this course. Some such policy must be pursued in future if this colony is not to continue to be a dumping ground for young ne'er-do-wells from other countries. We had no intention of recommending, and do not recommend, that the prisoner should be set loose upon this community before the term of his sentence expires.
"No. 3376.—Bigmay, Eighteen Months.—This prisoner, who lived unhappily with his first wife, made over to her certain valuable properties in another colony, under the mistaken impression that his wife had the power to return for this consideration to release him from any legal proceedings in respect of his offence of bigamy. Compared with other sentences passed on similar offenders, this prisoner, who bears an excellent general character, appears to have been somewhat harshly treated. In this case the Minister of Lands has, at our suggestion, courteously undertaken to protect the homestead block property of the ​prisoner from forfeiture during his incarceration. We consider that No. 3376 has been sufficiently punished for his offence, and would strongly recommend his release for consideration.
"No. 2561 and No. 2158.—These prisoners were convicted under Section 66 of the Police Act of 1892, under which any person may be convicted as a rogue and vagabond and sentenced to 12 months' hard labor 'if found in or upon any place for an unlawful purpose.' The Commission recommended that the legal point as to whether Barrack-street, where the prisoners were 'found,' was 'a place' within the meaning of the Act should be determined. In the result the prisoners were released, but they afterwards committed some offence which led to their fresh imprisonment. We call attention to this case because in some quarters the action of the Commission was criticised under the entirely erroneous impression that we had recommended the release of these men. As a fact, we did nothing of the kind. We simply suggested a judicial decision upon an important legal point, which had not previously been authoritatively determined.
"No. 10512 and No. 10454.—Both these prisoners are very emphatic in the assertion of their innocence, and, as far as No. 10454 is concerned, Acting Chief Warder Webster asserts that a detective stated in his presence that he (the detective) knew that No. 10,454 was innocent. No. 10,454 has presented a petition, and we have recommended that the prayer of that petition should be very carefully considered. Both prisoners positively assert that other men who really committed the offence for which they are now suffering punishment are now in the Gaol. In our opinion, it is most undesirable that officers of the Police Department, who have doubts as to the guilt of convicted prisoners, should make any statement to the prisoners themselves in such matters. It is clearly the duty of the officials who may have evidence which will exculpate any prisoner to communicate their information to their superior officers, in order that the requisite steps may be taken to the proper quarter to inquire further into the matter. Other cases where the police have interfered in this manner have been brought under our attention, and we have mentioned the subject to the Commissioner for Police, who cordially endorses our view as to the proper duty of his subordinates, if they become possessed of evidence tending to exculpate any prisoner.
We have the honor to be, Your Excellency's most obedient, humble servants,
    ADAM JAMESON (Chairman).
    FRANK CRAIG.
    JAMES GALLOP.
    HENRY LOTZ.
    E. W. MAYHEW.
    M. L. MOSS
    HORACE G. STIRLING
       Witness to the signatures of the Commissioners—
THOMAS HARRY,
Secretary.
    Perth, March 10, 1899.