House v R
55 CLR 499(Judgment by: Starke J.)
House v
R
Judges:
Starke J.Dixon, Evatt and McTiernan JJ
Judgment date: 6, 17 August 1936
Judgment by:
Starke J.
The appellant was charged under s 210(3)(c) of the Bankruptcy Act 1924-1933 that he, being a person against whom a sequestration order was made, did within six months before the presentation of the petition on which the sequestration order was made, pawn, otherwise than in the ordinary way of his trade, property, namely two bath-heaters, which he obtained on credit from A N Thomson & Co Ltd, and had not paid for. He was tried summarily, pursuant to s 217 of the Act. He pleaded guilty to the charge. It appeared that the petition for sequestration had been presented on 11th January 1935, that the sequestration order was made on 19th February 1935, that the bath-heaters had been obtained by the appellant on credit from A N Thomson & Co Ltd, and were pawned within a few days of their delivery to him, but were never paid for by him. Judge Lukin sentenced him to imprisonment for three months, with hard labour, and recommended that such sentence be served on a prison farm. A motion for special leave to appeal against that sentence was made to this court, but it was treated without objection as an appeal.
There is no doubt, I think, that an appeal lies as of right against the sentence (See Constitution, s 73; Bankruptcy Act 1924-1933, s 26(2)). But the sentence imposed upon an accused person for an offence is a matter peculiarly within the province of the judge who hears the charge: he has a discretion to exercise which is very wide, but it must be exercised judicially, according to rules of reason and justice, and not arbitrarily or capriciously or according to private opinion. In the present case, the appellant was guilty of a dishonest act, and I am quite unable to discover any reason whatever for interfering with the discretion exercised by the learned judge.
The appeal should be dismissed.