R v Fermanian - [1996] QCA 438

[1996] QCA 438

COURT OF APPEAL

FITZGERALD P DERRINGTON J AMBROSE J

CA No 276 of 1996
THE QUEEN
v.

GUY HAGOB FERMANIAN

Applicant

BRISBANE
..DATE 22/10/96
221096 T3/JAP/6 M/T COA 260/96
THE PRESIDENT: Mr Justice Derrington will deliver the first
judgment.

DERRINGTON J: The applicant was convicted of an offence of being knowingly concerned in an offence by his wife Julianna Fermanian of defrauding the Commonwealth. She had, at an earlier time, pleaded guilty to defrauding the Commonwealth and had been sentenced to three years' imprisonment with a recognisance release order after serving nine months.

The applicant went to trial and gave evidence which was obviously disbelieved by the jury because he was convicted of the charge. He tried to inculpate another innocent person during the course of his evidence and obviously earned the considerable disapproval of the learned trial Judge in the way in which he behaved himself in that regard, as well as for his obvious dishonesty in denying the charge.

He was sentenced to four years' imprisonment with a non-parole period fixed at two years. The appeal is based largely upon the disparity in the sentences of the applicant and his wife. There are certain factors running in both directions. As against the applicant, he was substantially involved in his wife's fraudulent dealings, but having regard to the nature of the charge brought against him as compared with that brought against his wife, it is quite manifest that he was being charged as an accessory only, and in relation only to part of the profits which were made from the venture.

221096 T3/JAP/6 M/T COA 260/96
She had been charged with dealing over a longer period of time
before his involvement, and the amount of her benefit was much
more substantial than that in which he was alleged to have been
involved. However, she had displayed remorse at an early stage,
had cooperated with the police and had made a timely plea of
guilty, whereas the applicant had shown no remorse whatever, as
the learned trial Judge very properly observed, and indeed had
tried to implicate another by false evidence. The latter
feature is not something which should attract a higher penalty,
but goes towards demonstrating the lack of remorse.

The applicant had a prior criminal history for dishonesty including the commission of an offence during a period of suspended imprisonment whereas his wife had no prior criminal history. The applicant claimed to have had health problems, which was doubted by His Honour. Alternatively, His Honour thought that perhaps his health problems were not as bad as he claimed. His wife also had health problems which had apparently been accepted by the prosecution as being correct. There are from this catalogue some manifest features which demonstrate that the applicant is in a disadvantageous position compared with his wife in relation to matters relating to remorse and the like.

However, fundamentally, it is essential to take into account that he was charged only as being, in effect,…

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 Fermanian

Details

AGLC: R v Fermanian [1996] QCA 438
Case: [1996] QCA 438
Decision Date: 22/10/1996

CaseChat Overview and Summary

In the case of R v Fermanian, the applicant, Guy Hagob Fermanian, appealed against his conviction and sentence for being knowingly concerned in an offence by his wife, Julianna Fermanian, of defrauding the Commonwealth. The appeal was heard by the Queensland Court of Appeal, with Fitzgerald P, Derrington J and Ambrose J presiding. The applicant had been convicted and sentenced to four years' imprisonment with a non-parole period of two years, while his wife had received a sentence of three years' imprisonment with a recognisance release order after serving nine months. The appeal was based largely on the disparity in the sentences of the applicant and his wife, with the applicant contending that his sentence should not exceed that of his wife, given his role as an accessory and the lesser extent of his involvement in the fraud.

The court had to decide whether the applicant's sentence should be reduced to align with that of his wife, taking into account the disparity in their sentences and the respective roles and conduct of both parties in the fraudulent activities. The court considered the nature of the applicant's involvement as an accessory, the fact that his involvement was only a part of the fraudulent activity, and the absence of remorse and attempts to inculpate an innocent person by the applicant. In contrast, the wife had displayed remorse, cooperated with the police, and made a timely plea of guilty. The court also noted the differing criminal histories and health issues of both parties. Ultimately, the court concluded that the applicant, as an accessory, should not receive a harsher sentence than the principal offender, his wife. Consequently, the court decided to set aside the applicant's sentence and impose a new sentence of three years' imprisonment with a recognisance release order in his favour after serving 18 months of that sentence.

In summary, the Court of Appeal allowed the application and appeal, and the applicant was resentenced to imprisonment for three years from the date of the original sentence. It was directed that he be released after having served 18 months upon giving security by recognisance in the sum of $500.00 conditioned that he be of good behaviour for the remainder of the sentence, the further period of 18 months.

Orders