R v Van der Vegt; ex parte - [2002] QCA 535

SUPREME COURT OF QUEENSLAND

CITATION:

R v Van der Vegt; ex parte A-G (Qld) [2002] QCA 535

PARTIES:

R
v
VAN DER VEGT, Jodie Martin Stephen
(respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)

FILE NO/S:

CA No 343 of 2002
SC No 8 of 2002

SC No 8A of 2002

DIVISION:

Court of Appeal

PROCEEDING:

Sentence appeal by A-G (Qld)

ORIGINATING COURT:

Supreme Court at Bundaberg

DELIVERED EXTEMPORE ON:

5 December 2002

DELIVERED AT:

Brisbane

HEARING DATE:

5 December 2002

JUDGES:

de Jersey CJ, Helman and Philippides JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Allow the appeal and vary the sentence imposed on 23 September 2002 by setting aside the recommendation in relation to post-prison community based release. The sentence should otherwise remain in its present form.

CATCHWORDS:

CRIMINAL LAW – JURISDICTION PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – MISCELLANEOUS MATTERS – where respondent pleaded guilty to being an accessory after the fact of murder and sentenced to eight years imprisonment, with a recommendation that he be considered for post-prison community based release after two years eight months – where the Attorney-General appeals on the ground that the recommendation for early consideration of parole rendered the penalty manifestly inadequate – where absent such a recommendation, eligibility for consideration for parole would not arise until the respondent had served four years.

R v Hawken (1986) 27 ACrim R 32, followed
R v Houghton [2002] QCA 159; CA No 347 of 2002, 10 May 2002, considered
R v Lister (1996) 86 ACrim R 527, considered
R v Winston (1994) 74 ACrim R 312, considered

COUNSEL:

R Martin for the applicant
B G Devereaux for the respondent

SOLICITORS:

Director of Public Prosecutions (Queensland) for the appellant
Legal Aid Queensland for the respondent

THE CHIEF JUSTICE: The respondent pleaded guilty to being an accessory after the fact of murder. He was sentenced on 23rd September 2002 to eight years' imprisonment with a recommendation that he be considered for post prison community based release after two years eight months.

The Honourable the Attorney-General appeals essentially on the ground that the recommendation for early consideration of parole rendered the penalty manifestly inadequate. Absent such a recommendation, eligibility for consideration for parole would not arise until the respondent had served four years of the term.

The deceased was a 15 year old schoolgirl. At a troubled and vulnerable stage of her life she turned to the respondent for help. It was while she was with him that she was murdered. The respondent assisted the murderer by disposing of the body, giving false information to the deceased's friends and lying to the police for more than two and a half years, including giving the police information suggesting that the deceased was still alive.

The respondent's wife initially protected him but she later made a statement disclosing admissions by the respondent. The respondent had told his…

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.

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Details

Case: [2002] QCA 535
Decision Date: 5 December 2002

CaseChat Overview and Summary

In the case of R v Van der Vegt; ex parte, the respondent, Van der Vegt, had pleaded guilty to being an accessory after the fact of murder and was sentenced to eight years imprisonment. The sentence included a recommendation that Van der Vegt be considered for post-prison community-based release after serving two years and eight months. The Attorney-General appealed the decision, arguing that the recommendation for early parole rendered the penalty manifestly inadequate. The appeal centred on whether the recommendation for early parole was appropriate and whether it affected the overall adequacy of the sentence.

The court considered whether the recommendation for early parole influenced the overall adequacy of the sentence. It examined the statutory framework and precedents regarding the appropriateness of parole recommendations in sentencing. The court noted that the statutory provisions allowed for parole eligibility only after a certain period had elapsed, and any recommendation for early parole would deviate from this framework. The court found that the recommendation was improper and had the effect of rendering the sentence manifestly inadequate.

Upon determining that the recommendation for early parole rendered the sentence inadequate, the court allowed the appeal. The sentence imposed on 23 September 2002 was varied by setting aside the recommendation for post-prison community-based release. The remainder of the sentence was to remain unchanged, with the eight-year imprisonment term intact.

ORDERS:
The court allowed the appeal and set aside the recommendation for post-prison community-based release. The sentence of eight years imprisonment remained in its original form, without the early parole recommendation.

Orders

Orders of the court

Allow the appeal and vary the sentence imposed on 23 September 2002 by setting aside the recommendation in relation to post-prison community based release. The sentence should otherwise remain in its present form.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Van der Vegt; ex parte A-G (Qld) [2002] QCA 535
PARTIES:	R v VAN DER VEGT, Jodie Martin Stephen (respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant)
FILE NO/S:	CA No 343 of 2002 SC No 8 of 2002 SC No 8A of 2002
DIVISION:	Court of Appeal
PROCEEDING:	Sentence appeal by A-G (Qld)
ORIGINATING COURT:	Supreme Court at Bundaberg
DELIVERED EXTEMPORE ON:	5 December 2002
DELIVERED AT:	Brisbane
HEARING DATE:	5 December 2002
JUDGES:	de Jersey CJ, Helman and Philippides JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Allow the appeal and vary the sentence imposed on 23 September 2002 by setting aside the recommendation in relation to post-prison community based release. The sentence should otherwise remain in its present form.
CATCHWORDS:	CRIMINAL LAW – JURISDICTION PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – MISCELLANEOUS MATTERS – where respondent pleaded guilty to being an accessory after the fact of murder and sentenced to eight years imprisonment, with a recommendation that he be considered for post-prison community based release after two years eight months – where the Attorney-General appeals on the ground that the recommendation for early consideration of parole rendered the penalty manifestly inadequate – where absent such a recommendation, eligibility for consideration for parole would not arise until the respondent had served four years. R v Hawken (1986) 27 ACrim R 32, followed R v Houghton [2002] QCA 159; CA No 347 of 2002, 10 May 2002, considered R v Lister (1996) 86 ACrim R 527, considered R v Winston (1994) 74 ACrim R 312, considered
COUNSEL:	R Martin for the applicant B G Devereaux for the respondent
SOLICITORS:	Director of Public Prosecutions (Queensland) for the appellant Legal Aid Queensland for the respondent