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Wednesday, 28 October 1914

Senator KEATING (Tasmania) .- As a practical illustration of Senator Gould's contention that a maximum penalty is regarded by a Judge as indicative of the punishment which the Legislature thinks should be inflicted for a prescribed offence, I may be pardoned for mentioning a case with, which I was connected in Tasmania. Senator O'Keefe will probably remember it, although he was in no way a party to it. A few years ago, I was engaged with another member of the legal profession as counsel in the defence of three young men who were charged with having stolen, and with having received knowing it to have been stolen, a certain quantity of mineral, the product of a mine. The case engaged a lot of attention, and lasted for three days. Counsel for the accused addressed the jury, and the Crown Prosecutor also addressed them at some length. The jury retired, and for some time were in doubt as to their verdict. The Court was therefore adjourned, and after the adjournment the jury intimated that they had arrived at a decision. When they were brought into Court, the place was crowded, quite a number of persons present having come from the locality where the offence was alleged to have been committed. When the jury were asked whether they found the prisoners at the Bar guilty or not guilty, the foreman, after some hesitation, replied, " Not guilty " and cheers at once burst forth - cheers which, after some difficulty were suppressed. A number of persons present accepted the verdict as one pf not guilty, and this result was accordingly telegraphed to the wives and relatives of the accused. But, immediately the applause had been quelled, the foreman continued, " Not guilty of stealing the tin, but guilty of receiving it knowing it to have been stolen." When these words were uttered there was a tremendous sensation. The Judge hesitated, and then asked if there was anything against the character of the accused. He was told that there was not, and he then proceeded, in tense silence, to pass sentence. He said : "Prisoners at the bar, the jury have found you guilty of receiving - they have found you guilty upon the second count in this information. You were charged with stealing, and also with receiving this property knowing it to have been stolen. Had the jury found you guilty of stealing property, the product of a mine, the maximum penalty which, under the Statute, I could have imposed would have been seven years, and, accordingly, I would have sentenced each of you to two years' imprisonment But the maximum penalty for receiving property, knowing it to have been stolen, is fourteen years' imprisonment, and, as the jury have found you guilty of this - the greater - offence, I feel that I ' must mark my sense of their verdict and of the distinction which has been drawn by the Legislature between these two offences. In the circumstances, I sentence each of you to five years' imprisonment." In that case the jury believed that they were letting the prisoners down lightly. Apparently they had compromised and found the accused guilty of receiving, being quite unaware of the fact that they had found them guilty of an offence for which the Legislature had prescribed a higher maximum penalty.

Senator O'Keefe - Not knowing that there was a silly law in existence.

Senator KEATING - It is a wellknown maxim that the receiver is worse than the thief. If there were no receivers there would be no thieves. This case was tried in Launceston by the late Mr. Justice Inglis Clark. If we provide that the maximum penalty prescribed in certain circumstances shall be double that set out in the Statute, it will be a clear indication to the Court that there shall be a corresponding distinction drawn between the punishments meted out to the different offenders. I note that the Minister has recognised the anomaly which will arise if this provision is to apply to previous offenders against the law of a State. I repeat that ample scope is given for a Judge to mark his sense of discrimination between offences of various degrees of gravity. The Courts will take into consideration whether an accused person is a first offender, a second offender, or a habitual offender, and will treat him accordingly.

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