PENALTIES FOR FAILURE TO PERFORM COMPULSORY TRAINING: WHETHER SENTENCE OF DETENTION IN DEFAULT OF PAYMENT OF FINE AND SENTENCE OF DETENTION IN ADDITION ARE CUMULATIVE OR CONCURRENT: PROCEDURE FOR ENSURING CUMULATIVENESS
DEFENCE ACT 1903, ss. 135 (4), 135A
The Secretary, Department of Defence, has forwarded, for advice, the following memorandum from the Commandant, 4th Military District:
In connection with cases of prosecution of trainees, for not rendering the personal service required by the Defence Act, cases have arisen in which the presiding Magistrate has awarded detention, together with a fine and costs, or in default of fine and costs, a further period of detention.
Police court officials state that in the event of non-payment, no further action can be taken as the two sentences must be served concurrently, there being no provision for cumulative sentences in the Defence Act.
I would be glad to have advice as to whether such sentences should be concurrent or cumulative.
Sub-section (4) of section 135 of the Defence Act provides that, in addition to any penalty imposed, or (where the Court is of opinion that the imposition of a 468
penalty would involve undue hardship) in lieu of imposing any penalty, the Court may, if it thinks fit, commit the offender to detention for a period not exceeding twenty days or for a time corresponding in duration to the time which, in the opinion of the Court, would be taken up in rendering the personal service required.
Section 135A provides for the detention of an offender in default of payment of a pecuniary penalty.
The Court has power to commit an offender to detention in addition to imposing a pecuniary penalty. It also has power to order that the offender be committed to detention in default of payment of the pecuniary penalty.
Where the Court imposes a period of detention and by the same order imposes a fine with provision for imprisonment in default of payment, and no extended time is allowed for payment of the fine, the period of detention originally ordered and the imprisonment ordered in default, are, in my opinion, concurrent and not cumulative. I think, however, that there is no objection to the Court in such cases ordering detention in the first place, and ordering payment of a fine within a period fixed by the Court, say, a period approximating to the period of detention which has been ordered. If then, imprisonment is ordered in default of payment of the fine, the imprisonment will not commence until the default has occurred, and, in such cases, the detention and imprisonment may virtually be made cumulative.
[Vol. 16, p. 235]