R v Feher - [2001] QCA 449

[2001] QCA 449

COURT OF APPEAL

DAVIES JA
AMBROSE J
CULLINANE J

CA No 132 of 2001

THE QUEEN

STEPHEN FEHER Applicant

BRISBANE

..DATE 17/10/2001

JUDGMENT

DAVIES JA: The applicant was convicted on his own plea of guilty in the District Court on 30 April this year to the offences of burglary and robbery in company with personal violence, robbery in company with personal violence, and unlawful use of a motor vehicle. On 1 May he was sentenced to an effective term of five and a half years imprisonment. A declaration was made with respect to some pre-sentence custody.

He seeks leave to appeal against that sentence, primarily it seems, because he submits that a parole recommendation should have been granted at the time and because he submits that his sentence should be at about the same level of the sentence which was imposed on one of his co-offenders, Hooper. He also appeared to mention in his written submissions the fact that his sentence may be more onerous because of some legislative changes which have been made.

The offences involved a very serious home invasion of which the applicant was the ringleader. He was owed, he said, $40,000 by a man and a woman whose house was to be, and was at his instigation, invaded in order to recover that sum or property to that equivalent value. He enlisted his two
co-offenders, A and Hooper, to perform the actual invasion. He instructed them as to the layout of the house in question, where the couple could be found sleeping, the nature of the property which they had in the house and the fact that the back door of the house was kept open.

He equipped them with masking tape and dark coloured ski masks or balaclavas. He told them when they should commit the offence. His specific instructions were to use the tape in the event of problems with the male complainant. Consequently, his co-offenders knew that the male complainant should be tied up if he gave trouble. The possibility of a struggle was mentioned and he told them that the property should be forcibly taken.

It is quite unsurprising then that in the home invasion which followed, the complainants were submitted to a protracted and terrifying ordeal, which extended over an hour and a half. A knife or iron bar was used and they were made to believe that the offenders had a firearm. The male complainant was tied up, gagged and assaulted. It is fair to say that the applicant did not anticipate that any such weapons would be used, but it is also abundantly clear that he contemplated the use of whatever force was necessary in order to achieve his goal.

The extreme seriousness of offences of this kind and the need for the imposition of deterrent sentences has been emphasised by this Court on many occasions. It is unnecessary to repeat here what has now been said so many times. It is most unfortunate, as…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Feher

Details

AGLC: R v Feher [2001] QCA 449
Case: [2001] QCA 449
Decision Date: 17 October 2001

CaseChat Overview and Summary

In the case of R v Feher, the applicant, Stephen Feher, was convicted on his own plea of guilty in the District Court of offences including burglary and robbery in company with personal violence, robbery in company with personal violence, and unlawful use of a motor vehicle. He was sentenced to an effective term of five and a half years imprisonment, and sought leave to appeal against that sentence. The primary grounds for his appeal were that a parole recommendation should have been granted at the time of sentencing, and that his sentence should be similar to that imposed on one of his co-offenders, Hooper.

The legal issues before the court involved the assessment of the appropriate sentence for the applicant's role in a serious home invasion orchestrated by him. The court had to consider the severity of the crimes committed, the applicant's role in the offence, and whether the sentence imposed was manifestly excessive. The court also had to weigh the applicant's late plea of guilty and the absence of other substantial mitigating factors against the serious nature of the crime and the need for deterrence.

The Court of Appeal found that the sentence imposed on the applicant was not manifestly excessive. The court noted the serious nature of the home invasion and the protracted and terrifying ordeal endured by the victims. It acknowledged that the applicant, as the ringleader, had a significant role in planning and instructing the offence, but also recognised that his co-offenders were responsible for the actual violence and use of weapons. The court emphasised the importance of imposing deterrent sentences for such serious offences and concluded that the sentence was appropriate given the circumstances. The court further noted that any legislative changes made after sentencing were irrelevant to the assessment of the sentence's severity.

The orders were that the application for leave to appeal against sentence should be refused.

Orders