R v Feher[2001] QCA 449

COURT OF APPEAL

DAVIES JA

AMBROSE J

CULLINANE J

CA No 132 of 2001

THE QUEEN

v.

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 the learned sentencing Judge pointed out, that all three offenders were not sentenced together.  This Court has emphasised on many occasions of the importance of doing that in order to avoid the risk of disproportional sentences being imposed.

In the case of A, had his sentence not been reduced for reasons mentioned in s. 13A of the Penalties and Sentences Act 1992, this Court would have imposed a sentence of eight years imprisonment with eligibility for parole after serving three years of that term. 

Hooper had earlier been sentenced to four years imprisonment with a recommendation for parole after 12 months.  It was, however, accepted that he played a lesser role in the invasion, was not involved in the violence and had entered a plea of guilty at his committal hearing.  The sentence imposed on the present applicant took into account his very late plea of guilty.  There were no other substantial mitigating factors.  Before this Court he has referred to the fact that he has a stable family life with a fiance and young child, but these are of very little significance in the overall consideration of this very serious criminal conduct.

When one has regard to the sentence which this Court would have imposed on A, it can be seen that the sentence which was imposed on the applicant was by no means excessive.  If anything, it was a little generous to him.  As was pointed out by the learned sentencing Judge, and in this Court by the respondent in its written submissions, there is some basis for the view that in many cases the procurer of the offence, that is in this case, the applicant, should receive a higher sentence than those who are responsible for the actual commission of it.

See, for example, remarks made by this Court in Kirkby, [2001] QCA 37, CA No 237 of 2000 23 February 2001.  On the other hand, some allowance must be made for the fact that A took with him and wielded a weapon, as I have mentioned, either a knife or an iron bar, which had not been within the specific contemplation of the applicant, and the learned sentencing Judge rightly took this into account.

Making due allowance for these matters, the contention that this sentence was manifestly excessive is without substance. Nor is it relevant that because of legislative changes taking effect since the imposition of this sentence it will or may be more onerous than otherwise might have been thought.  In my opinion, the application for leave to appeal against sentence should therefore be refused.

AMBROSE J:  I agree.

CULLINANE J:  I also agree.

DAVIES JA:  The orders are as I have indicated.