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

R. v. Smith and Akers [1834] NSWSupC 126

larceny - sentencing discretion - solitary confinement - military defendants in crime

Supreme Court of New South Wales

Burton J., 18 November 1834

Source: Sydney Herald, 24 November 1834[ 1]

in banco.

Robert Smith and William Akers, privates of His Majesty's 17th Regiment, convicted of larceny.  His Honor Mr. Justice Burton addressed the prisoners to the following effect:- Prisoners at the bar you now stand in a most degraded situation, and have brought disgrace on the honorable profession of a soldier, by descending to the perpetration of a disgraceful theft.  I have strenuously applied my mind to the consideration of what can be a proper punishment for men of your character, a punishment which may hold out no temptation for others, whose minds are degraded like your own, to put themselves in the condition of a convict, on the one hand, and which may do justice to the public on the other.  Looking at the law which gives me the power to award sentence of transportation, the impossibility of placing you in a situation which may not be desirable to other deluded men, who will not be deterred by extreme degradation of that situation to effect their object in the commission of acts like your own, I am led to think, that a more proper and efficient mode of restraining such conduct, may be applied to your case.  Looking at the law which allows me to inflict a corporal punishment, I am of opinion that it will more effectually attain the end desired, and fully satisfy public justice; I therefore award that you Robert Smith, and you William Akers, be confined in a solitary cell for fourteen days, and each to receive seventy-five lashes, a portion of which to be administered at the commencement of your confinement, and the remainder at its termination.



[ 1] See also Sydney Gazette, 20 November 1834; Australian, 21 November 1834.  For the judge's notes of the trial of these prisoners, see Burton, Notes of Criminal Cases, State Records of New South Wales, 2/2417, vol. 16, p. 44.  Both were charged with stealing in the dwelling house, but found guilty only of larceny.  Burton's notes called the second defendant ``Agar".  Two women, Alice Hackett and Elizabeth Richardson faced the same charge and were found not guilty.  On sentencing discretion, see also R. v. Dougherty and Gwillim, 1834, who were sentenced on the same day.

This is a reminder of the Sudds and Thompson case which was so controversial in the late 1820s.  For references to that case, see ``Sudds and Thompson" in the Subject Index.

Published by the Division of Law, Macquarie University