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Decisions of the Superior Courts of New South Wales, 1788-1899

R. v. Haggerty and others [1820] NSWKR 15; [1820] NSWSupC 15

stealing cattle - capital punishment - sentencing discretion

Court of Criminal Jurisdiction
Wylde J.A., 24 March 1820
Source: Sydney Gazette, 25 March 1820

           This morning the prisoners convicted on capital charges were brought before the Court to receive sentence.  These unhappy creatures were nine in number; viz.

Michael Haggerty and Thomas Till, for sheep stealing; Joseph Cunningham and Samuel Medworth, for cattle stealing; Theophilus Chamberlain, for stealing a mare; William Brewer for stealing a colt; Dominick McIntyre, for sheep stealing; John Davis, for stealing a bullock; and James Francis, for stealing a cow and calf.

           Upon this awful occasion, nine unhappy men standing at the bar of a Court in expectation of their horrifying doom presented to the pitying eye of the spectator a melancholy picture of calamity: the dye was cast, and the forfeit to be paid!  What forfeit?  Nothing but life itself, extending to a new creation, in which the doom of mortals was to be irrevocably fixed.

           The Judge Advocate and Members of the Court looked upon the wretched culprits with an anxious calc that seem to set the Almighty God's Commanding justice at variance with His blessed attribute of Mercy - and where, in what country, and what part of the world, would those unhappy persons have been spared?  Almost no where is the reply.  But, the Great Avenger can also defy and conciliate; and thus it was with these most miserable people.

           His Honor took then into contemplation the similarity of crime (cattle and horses-stealing), upon which all the prisoners had been convicted; and to the youthful expressed a regret that so early they should be drawn into vices that might cut short their very existence at an untimely period; and to the elder criminals his remarks conveyed an awful picture of debasement which it was shuddering to listen to.  In the case of Cunninghanm who had produced on his own behalf an account of a considerable property he possessed (as an argument against the necessity of his falling into cattle-stealing), the Judge observed, that this want of necessity to go into crime, however little the plea of necessity itself could be admitted as it respected crime, stood as a proof against his moral inclination as strong as that which had appeared against his character in Court.

           His Honor the Judge in a most impressive speech drew all the prisoners into a sense of contrition; and while he assured them of Mercy, so far as affected their lives yet suggested the impossibility of suffering them longer to remain in a condition wherein their crimes might be prolengthened. The youthful as well as the hoary head were equally now the miserable subjects of contemplation; and in the especial case of Cunningham, he was sorry to remark, that in his particular case he had disturbed that vast fidelity of character that belonged to the youth of this Colony, whose bright example it was a pity should be so unhappily traduced by the wretched misdoings of one individual of a society, that had preserved itself in a state that carried with it the highest of commendations, and merited the reward of approbation, which was greater to a rising generation than could be possibly rewarded otherwise than in the estimation, the esteem, and the commendation of an admiring world.  "Oh, yes," said he, "you have stabbed to the vitals in your young brethren: Yes, you have mightily transgressed, and left your young brethren of the Colony to deplore it.  Must they not renounce you?  Oh, yes, they will renounce you, and disclaim you."

           His Honor was much affected in his admonition to the wretched youth, who under a good guidance must have made a fine young man; but alas!  he was given up to destruction, and had fallen under its ruins.  He was happy, however, in mitigating the sentence of death to all of the prisoners at the bar to that of transportation for life to Newcastle, with the exception of Thomas Till for 14 years.

Published by the Division of Law, Macquarie University