Theft on trial: Prosecution, conviction and sentencing patterns in colonial Victoria and Western Australia
| DOI | 10.1177/0004865815620684 |
| Date | 01 March 2017 |
| Published date | 01 March 2017 |
| Author | Lisa Durnian,Alana Piper |
| Subject Matter | Articles |
Australian & New Zealand
Journal of Criminology
2017, Vol. 50(1) 5–22
!The Author(s) 2015
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DOI: 10.1177/0004865815620684
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Article
Theft on trial: Prosecution,
conviction and sentencing
patterns in colonial Victoria
and Western Australia
Alana Piper
Griffith University’s Criminology Institute, Australia
Lisa Durnian
School of Criminology and Criminal Justice, Griffith University, Australia
Abstract
From Ned Kelly to Waltzing Matilda, tales of thievery dominate Australia’s colonial history. Yet
while theft represents one of the most pervasive forms of criminal activity, it remains an
under-researched area in Australian historical scholarship. This article draws on detailed
inter-jurisdictional research from Victoria and Western Australia to elaborate trends in the
prosecution, conviction and sentencing of theft in colonial Australia. In particular, we use
these patterns to explore courtroom attitudes towards different forms of theft by situating
such statistics within the context of contemporary commentaries. We examine the way
responses to theft and the protection of property were affected by colonial conditions,
and consider the influence of a variety of factors on the outcomes of theft trials.
Keywords
Criminal justice history, larceny, nineteenth century, statistics, stealing
While writing his reminiscences in 1897, William Manwaring recalled a humbling event
in his early career in which a suspected thief escaped from custody. Manwaring com-
mented that he was told that the misadventure was a necessary episode ‘for every new
arrival needed to suffer injustice and loss to get assimilated to the selfishness of colonial
life’ (Manwaring, 1897, p. 21). Injustice and loss come in many forms, but Manwaring,
who following his arrival from England in 1857 worked as a Victorian police detective
until 1880, was likely thinking particularly in terms of criminal justice and property loss.
Theft dominates Manwaring’s entire memoir. Like many others, the detective was
convinced that colonial conditions, in particular the transportation system, had created a
Corresponding author:
Alana Piper, Griffith University’s Criminology Institute, 176 Messines Ridge Road, MT GRAVATT, Brisbane,
Queensland 4171, Australia.
Email: a.piper@griffith.edu.au
criminal class for whom stealing was a way of life. Following the style typical of police
memoirs published in England during the period, Manwaring relates a series of cases in
which he appears as an indomitable figure correcting the injustices perpetrated by this
dangerous underworld. He rarely concerns himself with the justice dispensed in the
courtroom following a thief’s apprehension.
Historical scholarship on the prosecution of theft in Australia is similarly sparse. It is
largely limited to the convict era and early settlement, with a particular focus on bush-
ranging (Elliot, 1995; Perkins & Thompson, 1998; West, 2009). Australian criminologists
compiled some useful long-term statistics in the 1980s on a limited number of larcenous
acts, but no attempt was made to place them in the context of a historical narrative
(Mukherjee, Jacobsen, & Walker, 1989). This lacuna is particularly surprising, given the
relevance of theft statistics to the continuing discussion of the legacy that convictism left
in the colonies (Braithwaite, 2001). Theft has received more attention in England, where
foundational studies of property crime are complemented by recent scholarship on spe-
cific types of stealing (Emsley, 1996; Godfrey & Cox, 2013; Meier, 2011; Tobias, 1972).
However, the extent to which observations about property crime in England equate with
Australian conditions, as well as the accuracy of the observations of colonial contem-
poraries like Manwaring, remains unknown.
In this paper, we aim to address this gap with an inter-jurisdictional comparison of
prosecution, conviction and sentencing patterns in Victoria and Western Australia
between 1861 and 1901. Both specific stealing offences and the overall rate of theft
are analysed to test colonial commentators’ claims regarding property crime, and com-
pare the statistics in these jurisdictions to what is known about crime in England. We are
especially interested in using this data to identify variations between prosecutions of
thefts and other offences, in order to understand how judges, juries and the community
at large responded to theft in the courtroom. Three key issues are examined: the fre-
quency and range of offences tried before the superior courts of Victoria and Western
Australia; conviction rates and what these suggest about jury attitudes and the insights
sentencing patterns offer into judicial outlooks.
Methodology and background
A comparison of Victoria and Western Australia allows us to consider how general
colonial conditions, as well as factors unique to particular colonies, affected legal out-
comes. Variation in the demographic characteristics and the historical development of
Victoria and Western Australia, in conjunction with some notable similarities in their
criminal justice systems, supports this comparative study. European colonists first settled
in Victoria, then known as the Port Phillip District, in 1803; however, their numbers
were so low that a system of local justice was not instituted until 1836 when a Court of
Petty Sessions was established in Melbourne to hear minor criminal matters. In contrast,
when the Swan River Colony of Western Australia was founded in 1829, a Court of
Quarter Sessions was almost immediately established with the powers to adjudicate the
most serious crimes.
The isolation of Western Australia, and the gold rushes at Bendigo and Ballarat in the
1850s, meant Victoria thereafter developed more quickly. In 1851, it separated from
New South Wales, and established its own Supreme Court. Western Australia did not
6Australian & New Zealand Journal of Criminology 50(1)
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