R v Vanderwerff - [1999] QCA 169

IN THE COURT OF APPEAL [1999] QCA 169
SUPREME COURT OF QUEENSLAND
CA 479 of 1998
Brisbane
[R v Vanderwerff]
T H E Q U E E N
v
MICHAEL WILLIAM VANDERWERFF
(Applicant)

Appellant
McPherson JA
Pincus JA
Moynihan J

Judgment delivered 14 May 1999
Judgment of the Court
APPEAL ALLOWED. SENTENCE IMPOSED ON APPLICANT REDUCED FROM IMPRISONMENT FOR SEVEN YEARS TO IMPRISONMENT FOR FIVE YEARS.
CATCHWORDS: CRIMINAL LAW - ACCOMPLICES - Whether sentence imposed on driver of getaway car was unduly severe - Considerations relevant on sentencing as compared with those which attract criminal responsibility
R v Barlow (1997) 188 CLR 1
R v Booth (CA 338/1998; Mar 30 1998)
Siganto v The Queen (1998) 73 ALJR 162.
Penalties and Sentences Act 1992

Counsel: Mr T Rafter for the applicant/appellant
Mr D Meredith for the respondent
Solicitors: Legal Aid Queensland for the applicant/appellant
Director of Public Prosecutions (Queensland) for the respondent
Hearing Date: 28 April 1999
REASONS FOR JUDGMENT - THE COURT
Judgment delivered 14 May 1999
1     This is an application by Michael Vanderwerff for leave to appeal against a sentence of imprisonment for seven years imposed for armed robbery after a trial in the District Court. The applicant was the driver of the "getaway" vehicle. The "actual" perpetrator of the offence was Frederick Vandersyde. On arraignment at trial on a joint indictment, he pleaded guilty, while the applicant pleaded not guilty. Sentencing of Vandersyde was deferred until after verdict in the applicant's trial, when each of them was sentenced to a term of seven years. Vandersyde has not appealed against that sentence.
2     The robbery took place at 5.45 pm on 9 October 1997 at the Glass House Cellars at the Beerwah Hotel. The Cellars was an offsales bottle shop under the management of a Mrs White, who at the time was alone in the shop. She was suddenly confronted by Vandersyde, who was armed with a double barrelled rifle or shotgun. His face was painted black and he was wearing a stocking over it. Mrs White began screaming. Vandersyde told her to shut up or he would shoot her. She pushed a display of bottles over and, in doing so, fell to the floor sustaining minor injuries. While she was lying there, Vandersyde twice said to her "just get the money or I'll shoot". She handed over a sum of money later calculated to be $2,060.05.
3     Meanwhile, the applicant was sitting in the driver's seat of a Sigma wagon which was parked in the car park outside. A witness kept him under observation for about 10 minutes, and thought it odd that throughout that period the applicant kept a mobile telephone to his face, although he did not appear to be speaking into it. The vehicle was intercepted by police at Caloundra a short time afterwards. Clothing and money as well as receipts traceable to the Cellars were found in it. The applicant claimed he had learned about the robbery only after it had…

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 Vanderwerff

Details

AGLC: R v Vanderwerff [1999] QCA 169
Case: [1999] QCA 169
Decision Date: 14/05/1999

CaseChat Overview and Summary

The case of R v Vanderwerff involved an appeal by Michael William Vanderwerff against a sentence of imprisonment for seven years imposed for armed robbery. Vanderwerff was the driver of the getaway car during the robbery, with the actual perpetrator being Frederick Vandersyde. Vandersyde pleaded guilty, while Vanderwerff pleaded not guilty. After the trial, both were sentenced to seven years of imprisonment, but Vanderwerff sought to appeal against his sentence.

The key legal issue in this appeal was whether the sentence imposed on Vanderwerff, who was the driver of the getaway car, was unduly severe. The Court of Appeal needed to consider the principles of sentencing and whether there were sufficient grounds to distinguish Vanderwerff's role from that of Vandersyde, the actual perpetrator, to warrant a reduction in his sentence.

The Court of Appeal found merit in Vanderwerff's appeal, noting that while he was a participant in the crime, his role was less significant than that of Vandersyde. The court observed that drivers of getaway cars in similar cases have often received more lenient sentences. They also took into account Vanderwerff's personal circumstances, including his lesser criminal history and lack of prior imprisonment, as compared to Vandersyde. Consequently, the Court reduced Vanderwerff's sentence from seven years to five years of imprisonment.

The Court allowed the appeal and reduced the sentence imposed on Vanderwerff to imprisonment for five years, reflecting the differences in their respective roles and personal circumstances.

Orders