The Queen v Preston, T.E

[1992] FCA 53

Re: THE QUEEN
And: TROY EDWIN PRESTON
No. ACT G41 of 1991
FED No. 53
Criminal Law
(1992) 58 A Crim R 328

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Jenkinson(1), O'Loughlin(2) and Higgins(3) JJ.

CATCHWORDS

Criminal Law - Crown appeal against sentence - Intentionally inflicting grievous bodily harm - Order suspending execution of sentence and bond set aside - Head sentence of three years confirmed - Sentence to date from date upon which respondent is taken into custody - Non-parole period of ten calendar months to run from same date.

Interference by appellate court - Review of discretion to suspend sentence - Principles.

R v J (1982) 45 ALR 33

R v Steich (1985) 5 FCR 518

R v House and Thorne (1991) 28 FCR 194

R v Trenholme (unreported; 20/9/88; Federal Court)

HEARING

CANBERRA

#DATE 24:1:1992

Counsel for the Appellant: Mr K. Crispin QC with Mr M. Chilcott

Solicitors for the Appellant: Director of Public Prosecutions

Counsel for the Respondent: Mr T. O'Donnell

Solicitors for the Respondent: Legal Aid Office

ORDER

1. The appeal be allowed for the purpose of setting aside the order suspending the execution of the sentence and the bond into which the respondent entered.

2. In lieu, the head sentence of three years be confirmed but to date from the date upon which the respondent is taken into custody.

3. There be a non-parole period of ten calendar months to run from the same date.
Note: Settlement and entry of orders is dealt with in Oder 36 of the Federal Court Rules.

JUDGE1

I agree with the reasons for judgment of O'Loughlin J. and with the orders which he proposes.

JUDGE2

The respondent pleaded guilty in the Magistrates' Court on 3 May 1991 to the charge of having, on 10 December 1990, intentionally inflicted grievous bodily harm: contrary to the provisions of s.19 of the Crimes Act 1900 in its application to the Territory. On the same day he was committed for sentence at the next sittings of the Supreme Court.

1. The respondent and his victim, who were strangers, had both attended a tavern in Greenway for the greater part of the day and the evening of the offence. They had spent some time together playing pool. As the respondent was leaving, the victim asked the respondent to drive him home; the respondent agreed.

2. The victim has no recollection of what happened after leaving the tavern that night; indeed, most of the facts were provided to the Crown by the respondent. In brief, the respondent claimed that the victim made homosexual advances and that he (the respondent) retaliated by striking and kicking him. His Honour expressly found that the respondent genuinely believed that the victim was making homosexual advances and concluded that the respondent had "behaved excessively and inappropriately in repelling those advances. Simply and plainly, he lost his temper".

3. Because of the seriousness of the victim's injuries, of which more must be said later, his Honour…