Willis J., 3 May 1839

James Hirst and John Adams were indicted for a highway robbery, and stealing from a dray three bags of sugar, the property of Messrs Syers Brothers, of Bathurst.

It appeared that, on the day laid in the indictment, a carrier named Benjamin Ashley, was proceeding with a dray load of sugar, which he had to convey for Messrs Syers to Bathurst, and between ten and eleven o'clock at night, two men, the one a very tall, and the second a very short man, stopped the dray on the Parramatta-road, and removed three bags of sugar and a small box from it, with which they made off. Ashley remained near the spot all night, and gave information to the mounted police, who went in search, and found the sugar, box, and walking stick, planted in the bush, about a hundred yards from Hirst's house. The two prisoners who lived together in a hut, a short distance from where the robbery was committed, and Ashley who could not swear positively to their features, swore to the best of his belief, from their general appearance, that they were the men who committed the robbery. Two men's tracks were traced from the road where the drays were stopped, to Hirst's house. The walking stick which was found with the sugar and box, was also traced to Hirst's possession.

The jury returned a verdict of guilty, and His Honor in sentencing the prisoners, took occasion to express his opinion of the objects of punishments, and the surest means of rendering their infliction effectual, as follows:--

Before I proceed to pass that sentence which the law awards to the crime of which you have been convicted, I shall avail myself of the opportunity which presents itself to explain my view of the true object of legal punishments, and the principles which in my mind should govern their inflictions. Nor, notwithstanding the numerous sentences passed in our Courts of Criminal Judicature in this Colony, I am not aware that what I believe to be the true theory on which they can alone be based, has hitherto been attempted to be developed.

I would premise then that in the infliction of punishment, true humanity requires all that is useless and unnecessarily severe, to be avoided. I say true humanity, because there unfortunately exists also, a spurious humanity or affected tenderness which frequently manifests itself in undeserved sympathy for the guilty, which is, in its effects, as practically noxious, as the former is virtuous and honorable. Keeping what I have said steadily in view, let it be distinctly born in mind, that the same action may be at once a sin and a crime; an act of moral terpitude, and one calling for legal punishment on the ground of political expediency, and that it is of incalculably different magnitude in which of these lights it is viewed. Thus in a moral point of view, the temptation to any offence is an extenuation of the guilt or sin of the offender; but on the other hand, it is a rule on which the legislature acts (as in the case of stealing sheep and other necessarily exposed property) that this very circumstance, which of itself affords the greatest temptation, calls for the heavier punishment to counterbalance it, in order to prevent the offence. It may also be well to repeat what all will admit in theory to be erroneous, but which nevertheless not unfrequently [sic] influences the minds of the unthinking, namely, that retribution or the infliction of just vengeance on the guilty is clearly out of man's province. Vengeance belongs not to us. The end or final cause of human punishment is not by way of atonement or expiation for the crime committed (for that must be left to the just determination of the supreme being) but as a precaution against future offences of the same kind, or in other words, it is not for retribution, but for prevention. We punish (and we have only a right to punish) a transgression, not, because he transgressed, but that others, by his example, may be deterred from disturbing society. We punish a wilful and malicious offender, not on account of his being morally more culpable than one who offends accidentally, but, because wilful acts are the only ones that can be prevented by fear of punishment. We punish a criminal on the same principle that we extinguish a conflagration to prevent its spreading, or destroy a mad dog that its bite may not communicate its infection. We seek to check the example of crime, and to substitute the example of terror. If a man intends to perpetrate a crime which he commits, he is then, and not otherwise, a proper subject for punishment.

The sense of insecurity produced by every crime that is committed, is, by far, its worst result; because uneasiness and distress of mind from perpetual apprehension, though a less evil, in each case, than the actual occurrence of what is dreaded, is an evil which extends to many thousand times more. There is more real humanity, therefore, in the protection of the unoffending, by preventing crime as far as it can be done, by the denunciation of punishment, than by lavishing mistaken feelings of kindness on the violators of the law. This protection cannot be accomplished by mere threats; it must be effected by the certainty, rather than by the severity of punishment. Criminals do not so much flatter themselves with the lenity of the sentence as with the hope of escaping. The more closely therefore we connect the ideas and establish the connexion of crime with the certainty of punishment, the more effectually shall we repress crime, and the less frequently will punishment be called for.

Painful, therefore, though the duty be, beyond what any one who now hears me can imagine, I now declare my determination to act upon the principles I have endeavoured to explain, believing them, as I do, to be the surest and most effectual for the prevention of crime, and the most consistent with real and unaffected humanity, and I now sentence you Prisoners at the bar to be transported according to law for the space of ten years.