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

R. v. Regan [1829] NSWSupC 69

highway robbery - sentencing discretion - Crown mercy


Supreme Court of New South Wales

Dowling J., 7 October 1829

Source: Australian, 9 October 1829

Before Mr. Justice Dowling, and seven Military Officers.

Dennis Regan was indicted for a highway robbery, on the person of John McMairne, on the 20th September.  It appeared in evidence, that as prosecutor, who is a private soldier belonging to the 57th Regiment, was returning home on the night in question, on reaching the back of the gaol, he was met by prisoner and another man.  Prisoner took possession of prosecutor's hat, and gave it to his ``pal;" and on McMairne's attempting to resist, knocked him down; after which, the comrade ran off.  The prisoner was secured by McMairne, and given in charge to a constable.  Prisoner in defence said, if he committed the assault alleged, he must have been drunk, as he had no recollection of it.  Guilty.  Immediately upon which, the learned Judge passed sentence of death upon the prisoner, advising him to indulge no hope of mercy in this world.[1 ]



[1 ] This appears to be extraordinarily harsh.  Under (1823) 4 Geo. IV c. 48, s. 1, except in cases of murder, the judge had considerable discretion where an offender was convicted of a felony punishable by death.  If the judge thought that the circumstances made the offender fit for the exercise of Royal mercy, then instead of sentencing the offender to death, he could order that judgment of death be recorded.  The effect was the same as if judgment of death had been ordered, and the offender reprieved (s. 2).

As a matter of Crown mercy, Regan was reprieved.  He was then sent on board the hulk, which was done before a prisoner was transferred to a penal settlement such as Norfolk Island or Moreton Bay: Sydney Gazette, 29 October 1829.

Published by the Division of Law, Macquarie University