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
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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.

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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, an accessory to his wife's fraudulent dealings and then in respect of part only of her lengthy fraudulent activity. That being so it is not possible, in the circumstances of this case, to see any reason why the head sentence of what is virtually an accessory should 221096 T3/JAP/6 M/T COA 260/96

exceed that of the principal offender.

Those features relating to remorse and the like which provided some benefit to his wife in relation to the recommendation for early release are not available to him. Applying the principle of parity to the present case it would be proper to impose upon the applicant a head sentence which corresponded with that imposed upon his wife; and in respect of the recommendation for early release that was made in respect of his wife, to withhold that from the applicant in recognition of those adverse features that I have mentioned.

As the result I would set aside the sentence and in substitution therefor impose upon him a sentence of three years' imprisonment with a recognisance release order in his favour after serving eighteen months of that sentence.

THE PRESIDENT: I agree. The circumstances of this matter reveal no basis upon which the applicant who was charged as an accessory should have been sentenced to a longer head sentence than the principle offender, his wife, especially when his head sentence was conceded to be at the upper end of the range for such offences.

The prosecution did not really dispute that the wife received an appropriate head sentence and an appropriate recommendation for early consideration for release on parole because of factors personal to her including her lack of criminal history, remorse, cooperation and early plea.

In my opinion the appropriate course, in this case, and I
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emphasise that no general principle is sought to be established,
was to sentence the applicant to the same head sentence as the
principle offender but to deny him the benefit of an early
recommendation.

AMBROSE J: I agree.

...

THE PRESIDENT: Mr Hamlyn-Harris, of course, your client is not here?

MR HAMLYN-HARRIS: No.
THE PRESIDENT: Can you give an undertaking that the requirements of subsection 16F(2) will be carried out.
MR HAMLYN-HARRIS: Yes, I can, Your Honour.
THE PRESIDENT: Is that course satisfactory, Mr Parker.
MR PARKER: It is, Your Honour, yes.
MR HAMLYN-HARRIS: I should say, Your Honour, just for completeness that I think it is only the first of those conditions which is applicable on the top half of the page.
MR PARKER: That's correct, Your Honour.
THE PRESIDENT: And the period of months is?

MR PARKER: Well, it would be the balance of the sentence.

THE PRESIDENT: Very well. That will be the remaining 18
months?
MR PARKER: It will be the remaining 18 months, yes.
THE PRESIDENT: Yes, very well. The application and appeal are
allowed and the applicant is sentenced to imprisonment for three
years from the date of the original sentence and it is directed
that he be released after having served 18 months upon giving
security by recognisance in the sum of $500.00 conditioned that
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he be of good behaviour for the remainder of the sentence, the
further period of 18 months.

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