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

R. v. Holmes, Owens and Whisken [1828] NSWSupC 106

stealing, in dwelling house, Bathurst, bushrangers, capital punishment, sentencing  discretion

Supreme Court of New South Wales

Forbes C.J., Stephen and Dowling JJ, 13 December 1828

Source: Australian, 16 December 1828

John Holmes, William Owens, and Thomas Whisken, found guilty of forcibly entering the dwelling house of Mr. James Hassall, and putting William Hunter, an inmate, in bodily fear, were thus addressed by the Chief Justice:- You, prisoners, have been severally tried and convicted of a capital felony.  Your offence was that of stealing from the dwelling house of Mr. James Hassal, a settler at some distance from Bathurst, at a place called Boalong, and putting divers persons therein at the time in bodily fear.  The offence of which you have been convicted is one of the most heinous description, and most dangerous in its consequences.  An offence which in this country may be considered of the deepest character, as it affects society, that can possibly be committed, and which therefore calls on the Court for a severe punishment.  It was clearly established in evidence on the trial, that you belonged to a banditti - you were roving about the country, and supported yourselves by plundering every station where you found property easy of spoilation, and were there were not sufficient means to resist your invasion.  It appears that without any sort of intimation on your part, you fired into the prosecutor's house.  When the house was secured against you, and resistance was made to your entrance, you repeated your aggressions by firing a second volley into the house.  You put the peaceable inhabitants on the station in front of you, and in such a situation as that if the inmates of the hut, in taking a defensive part, fired, they would have been necessitated to destroy their fellow labourers.  You also accompanied this act with a threat, that you would set fire to the hut, and consume its inhabitants, if they persisted in offering further obstruction to your admittance.  For this offence there is affixed a severe punishment, and it therefore becomes my painful duty to pass the awful sentence of the law upon you - a sentence which I must inform you, is not likely to receive any mitigation at the hands of those to whom Majesty has invested the privilege of extending mercy.  This too is not your only offence.  You have been convicted of another robbery.  You entered the peaceable dwelling of Mr. Gregson, and it was only in consequence of your being twice capitally convicted, that the Attorney General abandoned other informations upon which you were arraigned, and to which you pleaded not guilty.  It therefore becomes my painful duty to assign you severally for execution.

His Honor then passed the awful sentence of death upon the prisoners in the usual form.[1 ]

Notes

[1 ] Holmes, Owens and Whiskens were hanged on 22 December 1828: Australian, 23 December 1828.

Published by the Division of Law, Macquarie University