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

R. v. Baxter [1829] NSWSupC 9; sub nom. R. v. Baxter (No. 1) (1828) NSW Sel Cas (Dowling) 202

Sudds and Thompson case - sentencing discretion - reception of English law - larceny - habeas corpus - transportation, convict - convict punishment

Supreme Court of New South Wales

Forbes C.J., Stephen and Dowling JJ, 2 March 1829[1 ]

Source: Dowling, Select Cases, Vol. 2, Archives Office of N.S.W., 2/3462


[pp 134-135] [The Court has no power to alter a sentence passed upon a prisoner, at a session subsequent to that at which he had been tried.  Where a soldier coming to the Colony with his Regiment was convicted of grand larceny and sentenced to 7 years Transportation to a penal settlement,  Held that the sentence was good by the general law of England notwithstanding the provisions of the local ordinance 7. G. 4. No. 5. 16 August 1826.]

[p. 134]

Rex v Baxter

February 4 1829

Rowe moved for a writ of Habeas Corpus to be directed to the Commandant of the Penal Settlement at Moreton Bay commanding him to bring up the body of George Baxter a prisoner there confined under a Colonial sentence of Transportation, for the purpose of being discharged.  He founded his motion on the affidavit of George Robinson Esqr of the Veteran Battalion, which stated that by a certificate from the clerk of the Court annexed thereto it appeared that G. Baxter a Sergeant in the Veteran Battalion, had been tried and convicted of grand Larceny before [p. 135] this Court on the 15th August 1827[2 ] of a felony and was on the 27th August sentenced to be transported for seven years and that such sentence had been carried into execution, the prisoner having been removed to Moreton Bay, a penal settlement, where he now is, undergoing his sentence that at the time of such conviction the said G. Baxter was a free subject, never having been before convicted of any felony.  Rowe argued that this sentence was illegal for by the local ordinance 7. G. 4. No 5 16 August 1826. s. 5. this prisoner having come into the Colony free, could only be liable for his first offence to be imprisoned and kept to hard labour within prison walls only, and consequently could not be transported to a penal settlement, and there rendered liable to be worked in Irons, or subjected to the rigid discipline of such settlements.

Forbes CJ.  It appears to me that this is a case in which we ought not to grant a writ of Habeas Corpus.  By the law of England this prisoner was at the time of his conviction liable to be transported for the term of 7 years and [p. 136] therefore the Court before which he was convicted had jurisdiction to impose such a sentence.  The question is raised upon the construction of the act of the Local Legislature 7 G. 4. No 5.  That act recites the statute 6 G 4. C. 69. s. 5. which it was well known was intended to render persons transported to N.S.W. in execution of the sentence of any of H. M's foreign possessions subject to such laws and regulations as convicts transported from Great Britain.  At the time of opening the Supreme Court in 1824 a difficulty which was not contemplated at the time of passing the 4 G 4. C. 96. secured; as to the mode of carrying into execution a sentence of transportation when pronounced; but an order in Council having issued on the 11 November 1825. authorising the Governor by proclamation to appoint places for transporting persons convicted in and under sentence of transportation in the Colony the Governor of this Colony accordingly, by his proclamation of the 13 of August [p. 137] 1826 appointed Port Macquarie, Moreton Bay & Norfolk Island, to be the places to which offenders convicted in New South Wales should be sent or transported.  By s. 3. of the local ordinance 7 G 4. No 5. every sentence of transportation passed by any offender by any competent Court in New South Wales shall subject the offender to be conveyed to such of the said places as the Governor shall direct and the Governor is further empowered to direct the time and manner in which such order of Transportation shall be carried into effect.  By the law of England the offence of Larceny is punishable with Transportation the simple Judgment of the Court in a case of that description is that the party shall be transported for a specified time.  The Court does not appoint the place  It merely passes the judgment of law the time and manner in which the sentence is to be carried into execution is purely ministerial acts resting with the executive authority resting on its own responsibility.  It appeared to me therefore that notwithstanding .  Here provision in the 5th Section of the local ordinance[3 ] there is nothing to affect the sentence of transportation pronounced by the Court on this prisoner, that being a sentence which might be passed by the General Law of England, consequently we have no jurisdiction to give any relief assuming the facts to be true as state in the affidavit.

Stephen J.  I am of the same opinion.  I do not understand it to be sworn that this prisoner though transported to Moreton Bay is worked in irons or is subjected to any greater severity than he would be liable to if he had been transported from England to this part of the Colony of N.S.W.  Had that been the case then the Court would consider what was proper to be done in order to relieve him from unnecessary or improper restraints.

Dowling J.  I agree entirely with His Honor the Chief Justice in the view he has taken of this case.  Assuming that there is anything improper in the mode of carrying the sentence passed upon this prisoner into execution  It[4 ] appears to me that the proper course for obtaining relief is by petition to the Governor in Council, this being a matter purely executive.  If there was anything erroneous in the sentence itself, the course ought to have been pursued.  This court has no authority to vary or change the sentence passed by the Court at which he was tried  During the sitting of a Court or session at which a prisoner is tried, if there is anything erroneous in the sentence the Court may alter it.  But where the functions of the Court are ended then the only mode of seeking relief is by petition to the Governor in Council.  In any view of the case therefore, I confess it appears to me that this Court could not take cognizance of the objection  It is quite clear that this was a valid sentence inasmuch as by the law of England grand larceny is punishable by 7 years transportation the Court does not appoint the place.  that is purely a ministerial or executive act in the discretion of the Governor who of course acts on his own responsibility.  The Court pronounces such a sentence as may by law be passed it is for the executive [p. 138] to carry it into effect.  In the Courts at home the form of sentence is, that the prisoner shall be transported to such place beyond seas as His Majesty by and with the advice of his council shall direct and appoint for such a term.  So here the like form is pursued.  It must be observed that this matter comes before the Court rather of the latest being upwards of 18 months after sentence pronounced,  If the objection were tenable one would have expected that the law advisers of the prisoner would have been more prompt in the application.  That certainly would be no reason for refusing it if well founded but it appears to me that it is a matter in which we have no jurisdiction, We are not called upon to give any judicial opinion as to the relation which a penal settlement bears to the other parts of the Colony of New South Wales; but it may not be improper to intimate my opinion upon the subject which is that a penal Settlement is to be regarded in the same light with [p. 139] reference to the treatment of native free Colonists or free emigrants from the Mother Country transported thither.  as N.S.W. is regarded in the Mother Country as a place for transportation.  A native born Colonist or a free subject transported to Moreton Bay, Port Macquarie or Norfolk Island is liable to assignment and servitude but he is liable to no great degree of severity in discipline, than a person originally transported from England to N.S.W.  In short he is not liable to be worked in irons unless for sufficient reasonable cause in the present case I consider this application as untenable on two grounds, first this was an offence which rendered the prisoner liable to Transportation, and secondly, the execution of the sentence was purely a matter for the consideration of the Governor.

Writ refused



[1 ] This case was apparently decided on 2 March 1829, not in February as the notebook suggests.  The Australian, 3 March 1829 appeared to report the same hearing as having happened on that day.  It said that the question was whether it was legal to transport a free man to a penal settlement for a first offence committed in the colony.  The judges ruled that such transportation was legal, but that such prisoners were not liable to the extremes of punishment, such as working in chains, which were imposed on those who had been doubly convicted.  According to the Sydney Gazette and the Australian, the Supreme Court did not sit in February.  See also Sydney Gazette, 5 March 1829.

See also R. v. Kelly, 1831, where the principle in this case was applied.

[2 ] See R. v. Baxter, 1827.

[3 ] New, unnumbered page in manuscript.

[4 ] New, unnumbered page in manuscript.

Published by the Division of Law, Macquarie University