1871. VICTORIA. REPORT (No.2) OF THE ROYAL COMMISSION ON PENAL AND PRISON DISCIPLINE. PENAL AND PRISON DISCIPLINE. PRESENTED TO BOTH HOUSES OF l'AULIAMENT BI HIS EXCELLENCY'S COMMAND. lS!! autf}ont!!: JOHN FERRES, GOVERNMENT PRINTER, lllELllOURNE, No. 31. .... TABLE OF CONTENTS. I. REPOR'l': l. Punishment Sec. I to 8 2. Discretionary Power of Judges 9 to IS 3. Habitual Criminals ... 19 to 20 4. Remission of Sentences 21 to 27 5. Vfe Sentences 28 to 30 6. Miscellaneous Offences 31 to 34 7. Juvenile Offenders ••• 35 to 40 8. The Crofton System .•• 41 to 49 9. Gaols 50 to 58 10. .Adaptation of Crofton System 59 to 64 II. Board of Honorary Visitors 65 to 69 12. Conclusion ... 70 to 71 2 . .APPENDICES 'l'O REPORT : J. lion. J.D. Wood's Report on Irish Prisons Page xxiii 2. Circular to Sheriffs ... xxix 3. Summary of Replies to Circular XXX 3. EVIDENCE 4 • .APPENDICES 'l'O EviDENCE 28 Al',PROXBIATE COST OF JU:l'OHT. Preparation-Not g·iven. £ •. d. hhvrthand "\Vriting, &e. (Attendances, £23 2s.; TJ anscript~ BOO foHos, £40) 6:l 2 0 l::rlut.tng {850 copies) 59 0 0 122 2 () ROYAL CO~IMISSION ON PENAL AND PRISON DISCIPLINE. REPORT (No. 2) ON PENAL AND PRISON DISCIPLINE. \VE, the undersigned Commissioners, appointed under Letters Patent from the Crown, bearing date the 8th day of August 1870, to enquire into and report upon the Condition of the Penal and Prison Esta.blish­ ments and Penal Discipline in Victoria, have the honor to submit to Your Excellency the following further Report:- I.-PUNISHMENT. 1. Before entering on the enquiry, according to the terms of our Commission, Abstrnct rc­ luticn of " whether the punishment of crimes as now provided by law, and especially for" crim<' to certain crimes specified, " is adapted to their repression, and adequate to the protection punishment. of society," we must first consider the question of the abstract relation of crime to punishment. 2. It is a principle now held by almost all jurists that the primary object of The prim::ry f • fi • f desJgn of pums• h ment IS• to deter rom cnme, an·d t 11us protect society• ; t l1e re ormation o t h e punishment ouenc1r l er b· emg• a secon dary and sub orel' mate o1 )jCCt. • TlIe pena l sentence passe d b y crime.IS to repress the judge has relation to tl1e first, aud the manner in which that sentence is carried out to the second, of these objects. 3. This view is presented ·with much force in a memorandum affixed hy the Opinion ~' '1H! Lortl C•id Lord Chief Justice of England to the Report of the Royal Commission on Transporta­ Justice of tion and Penal Servitude appointed in 1863. Its importance justifies our inserting England. the quotation. His Lordship says :- " The 1mrposes for which the punishment of offenders takes place are twofold ; the first, that of deterring others, exposed to similar temptations, from the commission of crime ; the second, the reformation of the criminal himself. The first is the primary and more important object, for though society has, doubtless, a strong interest in the reformation of the criminal, and his consequent indisposition to crime, yet the result is here confined to the individual offender, while the effect of punishment, as deterring from crime, extends not only to the party suffering the punishment but to all who may be in the habit of committing crime, or who may be tempted to fall into it. Moreover, the reformation of the offender is in the highest degree speculative and uncertain, and its permanency, in the face of renewed temptation, exceedingly precarious. On the other hand, the impression produced by suffering, inflicted as the punish­ ment of crime, and the fear of its repetition, are far more likely to be lasting, and much more calculated to counteract the tendency to the renewal of criminal habits. It is on the assumption that punishment will IV ha>e the effect of deterring from crime that its infllction can alone be justified, its proper ami legitimate purpose being not to avenge crime but to prevent it. The experience of mankind has shown that though crime will always exist to a certain extent, it may be kept within given bounds by the example of punish­ ment. This result it is the business of the lawgiver to accomplish by annexing to each offence the degree of punishment calculated to repress it. More than this would be a waste of so much human suffering ; but to apply less, out of consideration for the criminal, is to sacrifice the interests of society to a misplaced tenderness for those who offend against its laws. Wisdom and humanity, no doubt, alike suggest that if, consistently with this primary purpose, the reformation of the criminal can be brought about, no means should be omitted by which so desirable an end can be achieved. But this-the subsidiary purpose of penal discipline-should be kept in due subordination to its primary and principal one. And it may well be doubted whether, in recent times, the humane and praiseworthy desire to reform and restore the fallen criminal may not have produced too great a tendency to forget that the protection of society should be the first consideration of the lawgiver." Practical 4. In practically applying the principles set forth in the preceding extract, it application of these is needful to keep steadily in view the two separate ends of punishment. The principles. expression quoted above, as to deterring "others," involves an important distinction. For it is certain, with respect to a large class of criminals, that the infliction of punishment is ineffectual to deter them fi·om persevering in evil courses. If unduly severe in proportion to the offence, especially in the higher classes of crime, it but too frequently hardens rather than reforms the offender. The habitual criminal is, in general, proof against its influence. But though it may not deter those who are hardened offenders, it certainly does deter many persons of weak and wavering principles, who might otherwise yield to temptation. It establishes a barrier on the boundary line between right and wrong which multitudes are pre­ vented from overleaping. It supports and strengthens the voice of conscience, by giving to it an outward expression and a practical power. Punishment thus exercises a higher function and a wider influence than the reformation of the individual offender. The final expression of its value as a soci.:<tl instrument is that it preserves multitudes from becoming criminals. Object of 5. For these reasons, it is the manifest duty of the Legislature in enacting, penal sen­ tences. and of judges in awarding, penal sentences, to consider primarily their deterrent force on society, and secondarily their probable moral influence on each particular offender. Every sentence must therefore carry with it a certain degree of sew'rity. It is no doubt natural for a judge, acting under the impulses of hum;1nity, to regard rather the reformation of the individual actually before him than the effect on the general public ; hut if the efficacy of punishment, as respects its prirnary object1 he in proportion to its severity, it follows that punishment ought to he as rigorous as is compatible with a due regard to humanity. \Ve are, therefore, of opinion that the general scale of penalties on the Criminal Statute Book is hy no means disproportionately severe, and that no material reduction could he made in it without incurring the risk of increasing crime, and thereby inflicting serious injury on the communi tv.; . Duty of the 6. But although the consideration of repressing crime must take precedence of State to attempt that of the criminal's refonnation, it is no less the duty as well as the interest of the moral refor­ mation of State to attempt the accomplishment of the latter task. That duty becomes all criminals. the more imperative if, as we have shovm, there is a large class of criminals on whom punishment has no continuous deterrent effect. :Men of this class, when they are released from custody, if they are not better, will assuredly have become worse. Hardened and indifferent to the opinion of their fellow-men, they will have grown desperate and almost reckless. If, therefore, it is possible, whilst they are in confinement, to teach them habits of self-restraint and of respect for the law, not merely will their own v moral character have been improved, but society will have been benefited by its escaping the evils to which it would have been exposed by their liberation. And Peml disci­ pline ought thus a systematic course of reformatory treatment constitutes an indispensable part to be framed with a view of any effective scheme of penal discipline, and all the several portions should be to reforma­ framed with a direct view to that end. tion. 7. Time also beeomes an essential element ; because the process of re­ Time an essential formatory treatment requires to he carried forward with eomparative slo\vness and element in any refor­ caution from stage to stage. In many instances the first lapse into eriminality matory may be the result of mere ignoranee ; ignorance of duty, or of the nature and system. consequences of crime; or it may be the result of an unusual temptation, acting upon a mind not naturally depraved. In these instances, and indeed in all, the indueements to eriminality may be lessened by a judicious system of reformatory discipline, provided it he carried over an extended period of confinement.