[stealing – sentencing discretion – pardons, effect on sentencing]

R. v. Roberts

Supreme Court of Van Diemen’s Land

Pedder C.J., 22 July 1839

Source: Hobart Town Advertiser, 26 July 1839[1]

            William Roberts was indicted for stealing three pigs, value three pounds, the property of Clement Gatehouse, Esq., of Sorell, on the 2nd June last, and having pleaded not guilty, the Attorney General, after a brief recapitulation, called

David Phillips, who being sworn deposed as follows: - resides at Longbottom in the district of Pittwater, about a quarter of a mile from the prisoner. On Wednesday the 29th of May last, I missed one of my steers, and on Sunday the 3rd of June went in search of it. I went to Robert’s farm, saw a smoke rising, and went towards it; saw two men there. I returned home, and took one of my men Thomas Wright with me. I left Wright to watch, while I went for a constable, I then returned, and the constable and myself rushed into the place where the fire was, and there saw two men; one ran away, and the other was taken. They were both in the employ of the prisoner. There were three hogs hanging up dead, and all done bleeding. About 11 o’clock I went to Mr. Gatehouse, and with him to the place. Besides the hogs, there was a hat, some straw, a handkerchief, and a broom, the remains of a fire and a bucket. There was also a good deal of blood near where the pigs were hanging.

Cross-examined. - I did not see Roberts speak to the men. Their names were Tubb and Leach. I was standing 400 or 500 yards from the place where I saw Roberts with a bucket. I saw Roberts about 20 yards from where the hogs were hanging. While he was in the scrub he was out of my sight for about ten minutes, during which period the other men were out of my sight too. The prisoner could not have gone to fetch water without seeing the men in the scrub. I am not aware of any track from Robert’s house to where I saw the hogs.

Thomas Wright. - In the month of June, I was in the service of the last witness, and remember my master calling me up one Sunday morning; went with him towards the scrub, and heard as it were the sharpening of a knife on a steel. I afterwards saw two men Tubb and another. I knew Tubb to be in the service of the prisoner, and also the other man who was taken into custody, I got within 30 yards of them; one was handing some straw to the other who was sweeping with a broom, I remained at the place while my master went for a constable. I had not the men in sight the whole time. While I stood there, the prisoner came down with two buckets, and went to the men who were at the fire; did not hear him speak to them. As Roberts passed me, a little dog that he had with him barked at me, when Roberts said, “what are you barking at?” On the dog barking Tubbs got on a tree and looked round him.

Daniel Roon, a constable, deposed to the fact of finding the hogs, &c. as stated by Phillips and also that the man Tubbs when taken endeavoured to bite off part of the ear of one of the pigs, which was produced, and proved to bear the ear-mark of Mr. Gatehouse.

Patrick James Smith, a district constable, gave similar corroborative evidence.

Clement Gatehouse, Esq., - On the night of Saturday the 2nd of June, three hogs were stolen from my farm near Sorell. On the following day, district constable Smith and David Phillips went with me to the scrub on Robert’s farm, and there found three hogs, which I believe to be my property, they being of the same size, same age, fed upon barley-meal in the same way as mine. The largest pig was ear-marked, and this mark I positively swear to.

After the jury had retired, a constable Smith was brought forward by the Judge, and spoke to having in company with chief district constable Byron, apprehended the prisoner at the London Tavern three weeks ago.

The jury after a very short consultation, returned with a verdict of - Guilty.

His Honor observed that as he perfectly concurred in the propriety of the verdict, he saw an occasion to delay the sentence of the Court. The prisoner held a conditional pardon, and had been in the colony since 1824. Although he had been punished for insubordination and neglect of duty, it did not appear he had ever been charged with felony. How far his present convictions may affect his emancipation was uncertain, but his Honor would take care he had the benefit of every privilege to which he was entitled. Owing to the number of persons who had obtained indulgences from the government, setting themselves down in various parts of the country either as thieves or the receivers of stolen property, it became necessary to put some decisive check to a system, under which numbers of unfortunate assigned servants were led into rather than preserved from crime. In the present instance, the sentence of the Court would be - transportation for seven years; and his Honor had no doubt Roberts would find his way to a penal settlement for some time at least.