A-6886060
Decided by Board November 9, 1948
Juvenile delinquency — Crime involving moral turpitude — Conviction/judgment as juvenile offender — Violation of section 69, act 3664, Province of Victoria, Australia, 1929 (larceny)
1. Under statutes of Province of Victoria, Australia, juveniles between 17 and 21 years can be treated either as juveniles or as adult offenders. Victorian (Australia) Statutes, General Public Acts, 1929; Children's Court Act of 1928; section 3-7, 13, 21, 25, and 34. Children's Welfare Act of 1928, section 3; Crimes Act, 1928, sections 67, 72, 73, 336, 337, 340, and 342. (See appendix attached to decision.)
2. Where proceedings and punishment accord with the Children's Welfare Act and the Children's Court Act, indicating treatment of the offender as a juvenile delinquent, the conviction/judgment is not one for a crime involving moral turpitude within the meaning of the Immigration Act of 1917, as amended, requiring expulsion or exclusion from the United States.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1917 — Admits crime, to wit: Violation of section 69, Act 3664, Victoria (Australia) Statutes 1929 (larceny).
Act of 1917 — Convicted of crime, to wit: Violation of section 69, Act 3664, Victoria (Australia) Statutes 1929 (larceny).
Act of 1924 — No visa.
BEFORE THE BOARD
Discussion: This is an appeal from an order of the Assistant Commissioner excluding appellant from the United States as inadmissible on the grounds stated above.
Appellant, at the age of 17 years and 10 months, took a purse from the cloakroom of the factory where she worked. The contents were in dispute, but extreme value of this purse was placed by the police at 25 shillings, $3.75 American money. A detective came to her room and accused her of having it. She admitted that she had it and she was taken before a court in Fitzroy, Australia, Province of Victoria. She was sentenced as follows: "Convicted and sentenced to 7 days' imprisonment. Execution of sentence suspended on accused entering into her own recognizance in 10 pounds to be of good behavior for 12 months." She was not sent to jail at this time or at any other time. There is nothing in the record to show that her conduct before and after that time was anything but exemplary.
In 1942 appellant married in Australia an American citizen serving in the armed forces of the United States. He was discharged from the army in September 1945, and returned to this country in October 1947. Appellant was asked by a Board of Special Inquiry why she did not return with her husband at that time. She testified that the American Consul in Melbourne had refused her a visa to come to the United States because she told him she had once been convicted of larceny.
Appellant entered Canada on December 2, 1947, on a British passport valid until December 3, 1948. She applied for admission at Detroit on December 7, 1947, and was held for a Board of Special Inquiry. On April 17, 1948, that Board rendered its excluding decision. Pending appeal, appellant remains in Windsor, Canada. Her husband now lives and has always lived in Columbus, Ohio. He visits her in Canada every 2 or 3 weeks.
All of the statutes of the Province of Victoria which appear to have any applicability to this case are included in the appendix to this decision. As the opinion of the Assistant Commissioner states, "There is nothing in the record to show that she was then regarded as a juvenile delinquent. She was brought to trial in the Court of Petty Sessions." It is necessary to look at the Australian law to determine whether or not she was, in fact, treated as a juvenile offender. This determination is necessary because, as this Board has held in the past, juvenile delinquency is not a deportable or excludable offense. ( Matter of E----, 56041/272, Apr. 7, 1944; Matter of M---- U----, 56170/505, May 12, 1944; Matter of O'N----, 55813/162, June 13, 1945.)
The Victorian statutes are in considerable confusion as to the ages and definitions of "children," "juvenile offenders," and "wards" of the State. Offenders between the ages of 17 and 21 are in a twilight zone under the Victorian statutes. They can be treated either as juvenile or as adult offenders. It is necessary to study the Crimes Act of 1928, the Children's Welfare Act and the Children's Court Act, the penalties and procedures provided therein, and the sentence which was imposed upon appellant. It is the conclusion of this Board that appellant was sentenced as a juvenile offender. Observe the procedure prescribed by the Crimes Act for trial of an adult offender for larceny (appendix, excerpts 13 and 14). The act provides for imprisonment up to 3 months for larceny of property of value not exceeding 2 pounds. The definitions, procedures, and penalties are formal, and harsh.
The Children's Court Act presents language more temperate and flexible. It provides (appendix, excerpt 11) that where "any child apparently over the age of 12 years" is adjudged by a children's court to pay any sums of money the child can be imprisoned for a certain period of time in lieu of payment. "Where the amount of the sum adjudged to be paid * * * is more than 20 shillings but is not more than 40 shillings * * * the said term shall not be more than 7 days." Other maximum sentences are prescribed in place of payment of other sums, larger and smaller. This is the exact punishment which the court prescribed for D---- R---- -- the value of the purse was placed at 25 shillings, and she was sentenced to 7 days' imprisonment, suspended for good behavior for 12 months. This is the punishment demanded by the Victorian law of a juvenile offender, not of an adult.
The next evidence to be considered is the manner in which the court which sentenced her was constituted and the place in which it sat. The Children's Court Act provides (appendix, excerpt 4) that the Governor may appoint one or more police magistrates or justices of the peace to act as special magistrates of the children's court. The certificate of conviction in her case is signed by one police magistrate and two justices of the peace, at least one of whom is apparently a woman "Janet Swan."
The Chairman of the Board of Special Inquiry said to appellant "Did you plead guilty to this charge before the court; that is, did you admit that you had taken these articles?" Appellant answered, "I wasn't taken to court or anything; I was in a room only, and there were no fingerprints taken" [italics supplied]. It is important to observe the statute provides (appendix, excerpt 6) that the Children's Court shall sit in some room of the building in which the court of petty sessions sits, but not in the same room or it may sit in any building or room.
The certificate of conviction was signed by the clerk of petty sessions, but the Children's Court Act provides the clerk and other officers of petty sessions shall also act as clerk and officers of the children's courts. From section 336 (appendix, excerpt 15) of the Crimes Act we can see that there is little distinction actually made between ordinary courts and children's courts in practice, in spite of the provisions of the Children's Court Act of 1928.
In addition to the sentences provided in section 34 (appendix, excerpt 11) the Children's Court Act provides in section 21 (c) (appendix, excerpt 9) that after conviction the child can be released on his own recognizance in a nominal sum to be of good behavior for a term of not more than 12 months. These are the terms of D---- R----'s probation; she entered a recognizance in the sum of 10 pounds to be of good behavior for 12 months.
In the Matter of O'N----, supra, this Board held that under the procedural provisions of the Canadian law O'N---- could have been treated as a juvenile offender, even though he was not so tried, and that he need not be held to have committed a crime involving moral turpitude. Since it appears in the instant case that the Australian court disposed of appellant as though she were a juvenile offender, it is not necessary for us to go behind the record of conviction.
Conviction as a juvenile offender is not a conviction rising to such a degree of guilt or involving such moral turpitude as to require a finding that appellant is not of good moral character. The first two grounds for finding appellant inadmissible are not sustained by the record.
Public Law 271 waives documentary requirements for alien spouses of United States citizens who are honorably discharged from the Armed Forces of the United States during the Second World War, if they apply for admission before December 28, 1948. Therefore, it is not necessary for appellant to have an immigration visa. The documentary ground of inadmissibility is not sustained.
Order: It is directed that the appeal be and the same is hereby sustained, the appellant to be admitted to the United States for permanent residence.
APPENDIX
EXCERPTS FROM VICTORIAN (AUSTRALIA) STATUTES, GENERAL PUBLIC ACTS, 1929
Volume I
Children's Court Act 1928
Excerpt No.
1. P. 355 — Sec. 3:
3. In this act, unless inconsistent with the context or subject matter — "Child" "children" means boy or girl or boys and girls under the age of 17 years.
2. P. 356 — Sec. 3:
3. "Juvenile offender" means a convicted child liable to be sent to a reformatory school or to the care of the children's welfare department under the provisions of division 2 of part II of the Crimes Act 1928 or any corresponding previous enactment.
3. P. 356 — Sec. 4:
4. A children's court is by this act declared to have been established and shall be held at every place within the State of Victoria where a court of petty sessions is appointed to be held.
4. P. 356 — Sec. 5:
5. The Governor in Council may appoint for any city, town, or place any police magistrate or any one or more justices of the peace of the bailiwick in which such city, town, or place is situate or any other person or persons to be a special magistrate or special magistrates and to exercise the jurisdiction of a children's court under this act. Every special magistrate appointed under the acts hereby repealed or any corresponding previous enactment shall be deemed to have been appointed under this act.
5. P. 356 — Sec. 6:
6. Every children's court shall consist of —
( a) where situate in any city, town, or place for which a special magistrate has been appointed as hereinbefore provided one or more special magistrates; and
( b) where situate in any city, town, or place for which no special magistrate has been appointed any two or more justices of the bailiwick within which the court is held or a police magistrate.
6. P. 356 — Sec. 7:
7. Every children's court shall hold its sittings —
( a) in some room of the building in which the court of petty sessions of the place usually sits but the children's court shall not be held in the same room as that in which the court of petty sessions is at the time sitting for the transaction of its business or in which a justice or justices are sitting out of sessions; or
( b) in any building or room.
7. P. 357 — Sec. 13:
(1) A children's court shall have exclusive jurisdiction to hear and inquire into all charges and informations against children for felonies and misdemeanours committed or suspected to have been committed by them and may direct the accused to be tried according to law or discharge them and may hear and determine all information for offences against any act punishable on summary conviction committed or suspected to have been committed by children.
8. P. 357 — Sec. 13.:
(3) Every children's court shall for the purposes of this act have and may exercise all the powers and authorities for the time being possessed by courts of petty sessions.
9. P. 361 — Sec. 21:
21. Where a child has been charged before a children's court with an offence punishable on summary conviction by penalty or imprisonment other than an indictable offence so punishable and such charge has been proved to the satisfaction of the court such court may —
* * * * * * *
( c) Upon convicting the child discharge him conditionally on his entering into a recognizance in a nominal sum with a surety or sureties to the satisfaction of the court in such sum as the court thinks reasonable and proper, to appear for punishment when called upon or to be of good behaviour for a term of not more than 12 months, and if it thinks fit, in addition, to order him to pay such damages and costs of either of them as the court thinks reasonable; or
* * * * * * *
( e) without convicting him release such child on probation;
* * * * * * *
10. P. 363 — Sec. 25:
25. Where a child is tried for an indictable offense before the supreme court or a court of general sessions and found guilty, or where he has pleaded guilty before either of such courts to a presentment charging him with an indictable offense and in either of such cases has been sentenced to imprisonment for a term of not more than 3 years the judge or chairman of such court may if he thinks fit so to do (whether such child has been previously convicted by any court of any offense or not) suspend the execution of the sentence as provided for in sections 532 and 534 of the Crimes Act, 1928, and thereupon all the like consequences of law shall ensue with respect to such child and his recognizance as in the cases provided for in the said sections.
11. P. 368 — Sec. 34:
34. Where any child apparently over the age of 12 years is adjudged by a children's court to pay any sum or sums of money by way of penalty it may also adjudge such child to pay the same either immediately or within such period as the court thinks fit and in case the same is not paid at the time so appointed that such child shall be imprisoned for such a term as in the opinion of the court will satisfy the justice of the case but shall not be more in any case than the maximum fixed by the following scale:
Where the amount of the sum or sums adjudged to be paid —
* * * * * * *
Is more than 20 shillings but is not more than 40 shillings
The said term shall not be more than 7 days.
and such imprisonment shall be without hard labour.
Children's Welfare Act 1928
12. P. 372 — Sec. 3:
3. In this part, unless inconsistent with the context or the subject matter —
"Child" is applicable to any person under the age of 21 years.
* * * * * * *
Crimes Act of 1928
13. Sec. 72 — Summary jurisdiction in larceny:
Where any person is charged before justices assembled in petty sessions —
( a) with simple larceny, and the value of the property alleged to have been stolen does not in the judgment of such justices exceed the sum of 2 pounds * * *
* * * * * * *
It shall be lawful for such justices to hear and determine every such charge in a summary way; and if the person charged confesses the same, or if such justices after hearing the whole case for the prosecution and for the defence find the charge proved, then such justices may convict the person charged and commit him to gaol for imprisonment for a term of not more than three months; and if they find the offense not proved, they shall dismiss the charge and on being requested so to do make out and deliver to the person charged a certificate under their hands stating the fact of such dismissal; and every certificate may be in the form in the second schedule or to the like effect.
Provided always that if the person charged does not consent or if such justices are of opinion that the charge is from any circumstances fit to be prosecuted by poceedings as for an indictable offence rather than to be disposed of summarily, such justices shall instead of summarily adjudicating thereon deal with the case in all respects as if they had no authority finally to hear and determine the same.
Provided also that if upon the hearing of the charge such justices are of opinion that there are circumstances in the case which render it inexpedient to inflict any punishment, they shall have power to dismiss the person charged without proceeding to a conviction upon his finding surety or sureties for his future good behaviour or without such sureties. Every conviction and certificate to be made or given as aforesaid shall contain a statement that the offender consented to the charge being decided summarily.
14. Sec. 73 — Mode of procedure by justices in dealing with cases summarily:
Where the justices before whom any person is charged as aforesaid propose to dispose of the case summarily under the foregoing provisions, one of such justices, after the examination of all the witnesses for the prosecution has been completed and before calling upon the person charged for any statement which he may wish to make, shall state to such person the substance of the charge against him and shall then say to him these words or words to like effect —
"Do you consent that the charge against you shall be tried by us or do you desire that it shall be sent for trial by a jury?"
and if the person charged consents to the charge being summarily tried and determined as aforesaid, then the justices shall reduce the charge into writing and read the same to such person and shall ask him whether he is guilty or not of such charge; and if such person says that he is guilty, the justices shall pass such sentence upon him as may by the last preceding section be passed in respect of such offense; but if the person charged says that he is not guilty, the justices shall inquire of such person whether he has any defence to make to such charge; and if he states that he has a defence, the justices shall hear such defence and then proceed to dispose of the case summarily.
(All following sections except Excerpt 21 from Division II entitled "Juvenile Offenders")
15. Sec. 336:
Whenever any child apparently under the age of 17 years is convicted of any offense for which a sentence of imprisonment may be awarded whether such an offense is an indictable offense or punishable on summary conviction the judge or chairman of the court before which or a children's court by which such child is so convicted may in lieu of any sentence of imprisonment order such child to be committed if apparently over the age of 12 years or having in the opinion of such judge chairman or children's court been leading an immoral or depraved life to a reformatory school, * * * to the care of the children's welfare department.
Provided always that such judge chairman or children's court may under the special circumstances of any case order any such child apparently over the age of 12 years and not having in the opinion of such judge chairman or children's court been leading an immoral or depraved life to be committed to the care of the children's welfare department instead of to a reformatory school.
16. Sec. 337:
When any child convicted of any offense is committed to a reformatory school or to the care of the children's welfare department, such child shall not suffer any forfeiture or disability of any kind in consequence of such conviction other than is provided by this division or any law for the time being in force relating to children's welfare.
17. Sec. 340 — Power to transfer child from gaol to reformatory:
When at or after the commencement of this act any child apparently under the age of 18 years is confined in any gaol under sentence of imprisonment it shall be the duty of the inspector general * * * to consider whether such child could be properly transferred to a reformatory school * * * and such order shall have the same effect as and be deemed an order committing such child to such reformatory school under the provisions of this Division and shall unless such child be transferred back to such gaol under the powers herein contained in that behalf operate as a remission of the residue of the sentence of imprisonment of such child.
18. Sec. 342:
Whenever any child is committed or transferred to a reformatory school under the provisions of this or any other act for the time being in force authorizing such committal or transfer the superintendent or matron of such school shall become guardian of the person of such child to the exclusion respectively of the father and of every other guardian until such child attains the age of 18 years or such greater age not exceeding 20 years as the governor in council may direct unless such child is sooner discharged; and such superintendent or matron shall as such guardian have the sole right to the custody of such child and shall deal with such child as directed by this Division and the regulations of the governor in council in force hereunder.
19. Section 83 of the Children's Welfare Act of 1928 and section 363 of the Crimes Act of 1928, providing penalties for rape, seduction, and carnal knowledge, refer to female wards or children "apparently under the age of 18 years." Sections 356 through 359 deal with the power to release a child committed to a reformatory on bail to the custody of a guardian. These sections refer to the child before he "attains the age of 18 years."
20. Sec. 336 — Constable to apprehend offenders without warrant:
For the more effectual prosecution of all offenses against this division (division II — "Juvenile offenders") any person found committing any such offense may be immediately apprehended without a warrant by any member of the police force and forthwith taken before a justice to be dealt with according to law.
21. Sec. 69 — Crimes Act 1928:
Every larceny, whatever is the value of the property stolen, shall be deemed to be of the same nature and shall be subject to the same incidents in all respects as grand larceny was before the first day of April 1828.