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

R. v. Saunders [1841] NSWSupC 14

rape - sexual assault on child - assault, sexual - sentencing discretion

Supreme Court of New South Wales

Dowling C.J., 1 February 1841

Source: Sydney Herald, 2 February 1841[1]

            George Saunders was indicted for having on the 7th of December last, violated the person of Frances Hunt, a female child, aged seven years; a second count charged him with having been guilty of an assault with intent, &c.; the offence was charged as having been committed at Jamberoo, near Kiama, in the house of a female named Ann Cossar, in whose care the prosecutrix had been placed by her parents. Ann Cossar admitted in examination that she had been upwards of twenty years in the Colony, and had lived with several single men as house-keeper, and had had several children by them, she also acknowledged to having been drunk for as much as a week at a time while on the spree. It appeared that the prisoner was not the only person who had taken improper liberties with the prosecutrix. The prisoner was defended by Mr. Purefoy, whose line of defence appeared to be that of getting the witnesses to stultify themselves by giving different accounts of the affair. The Jury retired for about ten minutes, and returned a verdict of not guilty on the capital charge; but guilty of the assault. His Honor ordered the prisoner to be remanded.

Dowling C.J., 15 February 1841

Source: Sydney Herald, 16 February 1841[2]

George Saunders, an aged man, who had been convicted before the Chief Justice of having assaulted a female child, under ten years of age, with intent to commit a rape, on an information charging the capital offence, was then placed at the bar to receive sentence, when called on to state what he had to say why the sentence of the court should not be pronounced against him, he shrugged up his shoulders, but said nothing. His Honor the Chief Justice said, it was a lamentable fact that the calendar of criminal offences which had been presented to the court during the present criminal sessions, contained a long list of offences similar to that of which the prisoner had been convicted. It was a lamentable fact, that even amid the profligacy and the crime with which society appeared to abound, such offences were becoming more common than they used to be. In the case of the prisoner before the court, the jury, who had tried the case in the most impartial manner, had by their verdict virtually decided that, as far as morality and decency were concerned, they had found him guilty before God and their country of the capital charge; but it was fortunate for the prisoner that there was a legal defect in the evidence, which compelled the jury to acquit him of the capital charge. As it was, he must tell the prisoner that he was ashamed of such conduct being charged against one of his own sex. Had the capital charge been confirmed against the prisoner, the heaviest punishment which the law authorized would have been awarded; but as the jury had only convicted of the charge of an assault, with attempt, the court would, for the protection of the public virtue, award the heaviest sentence which the present state of the law allowed it to inflict, viz., That the prisoner be worked in irons on the roads of the colony for the period of three years.

            John O'Hiefe, who had been convicted of a similar offence, was next placed at the bar, but declined assigning any reason why sentence should not be pronounced against him. His Honor the Chief Justice, previous to passing sentence on the prisoner, said, You are another of the guilty persons whose names appear on the black calendar of the present sessions as being charged with an offence which you, as a man, ought never to have contemplated, far less being guilty of. You, a hoary headed monster, for that is the proper term for you, with one foot in the grave, have dared, at your advanced years, to do your utmost to violate a young and innocent human being; had the jury convicted you on the capital charge, the law should most assuredly have been allowed to take its course; but as it is, the law has saved you from being subjected to more than being worked on the roads in an ironed gang for three years, and he trusted, that during the time he was thus exhibited on the roads of the colony, that he would see the evil of his ways and also be a salutary warning to all those, who, like him, violated the rules of religion and morality.

            William Manson, late bandsman of the 28th Regiment, who had been convicted of a similar offence, was next placed at the bar, and like the others had nothing to offer in arrest of judgment.

            His Honor the Chief Justice, previous to passing sentence, informed the prisoner that it was a redeeming circumstance in his case, that he had the audacity to appear before the Court in his regimentals; he was now before the Court to receive sentence for an offence, which was, in any state of society which made the leastpretentions to decency, decried and regarded with horror. The Court, however, could not shut its eyes to the fact, that the prisoner had by his attempt to commit the crime, done all he could to disgrace the service of his Queen and country, and had thus brought disgrace inferentially on a body of men, who were, of all others, looked up to as being examples of public decency and decorum. His Honor was sorry to perceive by the documents before the Court, that the offence of which the prisoner had been convicted was becoming so prevalent, that he considered it his duty, as a minister of justice, to state that should the examples made during the present sessions not check the evil, that the Legislature would be warranted in immediately passing a more stringent law for its suppression, as the law had to protect the virtuous, as well as to punish the vicious. The Court could not close its eyes against the fact, which had judicially come before it, viz., - that the prisoner, not content with attempting to violate the person of his victim, had previously endeavoured to destroy the effect of all moral principle in her mind. He was sorry to have good reason for believing, that the present was not the only case in which the prisoner had stood in the place where he then appeared. Under all the circumstances of the case he did not see that a less sentence could be awarded the prisoner than that he should be confined, and kept to hard labor in Newcastle gaol for two years, one week in each month to be spent in solitary confinement.

Notes

[1]              See also Sydney Gazette, 4 February 1841; Australian, 2 February 1841. See also R. v. Welsh, 1841, R. v. O'Keefe, 1841, R. v. Manson, 1841, all inAustralian, 6 February 1841; and R. v. Fenningham or FinnighanAustralian, 15 July 1841; Sydney Gazette, 15 July 1841

[2]              See also Sydney Gazette, 18 February 1841; Australian, 16 February 1841.

Published by the Division of Law, Macquarie University