The Queen v Vanderwerff[1999] QCA 169

IN THE COURT OF APPEAL

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.

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 happened, but the jury found he was a party to it, who knew what was going to happen when he drove there with Vandersyde and also that Vandersyde was armed with the firearm which he planned to use or brandish in the crime.

4. The robbery was a serious example of its kind and was carried out in a deliberately threatening and frightening manner. Needless to say, Mrs White had been severely affected by the experience.  She now finds it difficult to work in the bottle shop and is uneasy and anxious when doing so. The learned sentencing judge stressed the potential for serious harm to be inflicted in the course of a crime like this, as well as the terror it induced in the victim, the public concern over the incidence of such offences, and the need for deterrence. In sentencing Vandersyde, his Honour noticed that he had pleaded guilty but at a late stage; he said he would not make a recommendation for early parole because of the serious nature of the offence and because he had decided not to exercise his discretion under s 161B(3)(b) of the Penalties and Sentences Act to declare him to be convicted of a serious violent offence. Bearing in mind these and other factors to which he referred, his Honour fixed the term of imprisonment at seven years. In sentencing the applicant to a similar period of imprisonment, the learned judge said that no distinction should be made between the applicant's case and that of Vandersyde. The verdict reached by the jury meant that the applicant knew what was going to happen, and he played an essential part in it.

5. We have nevertheless come to the conclusion that there is merit in the applicant's complaint that in his case the sentence was unduly severe. A review of the decisions of this Court and of its predecessor suggests that sentences imposed on a person who acts only as a driver for those who carry out a robbery of this kind have in practice been more lenient than for the actual perpetrator or perpetrators. In some instances, the penalty imposed on the driver has been surprisingly moderate; but several of those decisions may be explicable by the youthfulness of the offender concerned. One who assists in that or other ways in carrying out a crime is expressed in s 7(1) of the Code to be "deemed to have taken part in committing the offence and to be guilty of the offence" and to be liable to be charged with "actually committing it". They also serve who only stand and wait. Section 7(1) is however concerned to impose criminal responsibility, and even in that context it is possible for various participants to be convicted under s 7(1)(b) of offences of differing levels of seriousness compared with the offence committed by the person who, under s 7(1)(b), "actually does the act ...": cf R v Barlow (1997) 188 CLR 1.  In any event, the considerations relevant on sentencing are by no means identical with those which attract criminal responsibility. We consider that in this case there is a discernible difference between what was done by Vandersyde and what was done by the applicant. If it is true to say that the offence was committed with the applicant's assistance, it is equally if not more obvious that, if Vandersyde had not been willing to enter the bottle shop and menace the manageress with the gun, the robbery would or might perhaps never have taken place at all.

6. When it comes to sentencing, there is therefore a valid basis for distinguishing between the two participants in the present case. Vandersyde admittedly pleaded guilty, while the applicant did not. His guilty plea came, however, so late that, in a trial of this duration (two days), it could, as the learned judge noticed, not count for very much in terms either of cost saving to the community or as a manifestation of remorse. Moreover, there were some differences in the personal circumstances of the two offenders which perhaps merited greater weight than the learned judge was willing to ascribe to them. The applicant was born on 28 November 1963 and so was almost 34 years of age at the time of this offence. Vandersyde was born on 30 December 1956 and so is older than the applicant. He has three children of his own ranging in age from 7 to 20 years. He came from a dysfunctional family and, because of his dyslexia, he attended an Opportunity School. He has an extensive history of consistent offending beginning in 1979 and occupying some five pages of  appeal record up to and including 1997. Many of the offences are relatively minor, but included among them are convictions for aggravated assault, breaches of domestic violence orders, two assaults occasioning bodily harm, and at least one conviction for assaulting police. A principal source of his problems is that he has an addiction to alcohol and to heroin, of which he had made some, although unavailing, efforts to rid himself.

7. By contrast, the applicant has a record comprising only four substantive offences, including two that are drug-related (one in 1996) together with a drink-driving offence in 1986 and a conviction for using obscene language in 1988. He is not said to have had a disadvantaged childhood and he completed high school to grade 10. He has had a number of occupations and a relatively good work record, although he was unemployed at the time of this offence. He has never married or had children, but is in a permanent relationship with a woman, who was present in court throughout the proceedings. Unlike Vandersyde, the applicant has not previously undergone a term of imprisonment.

8. The difference in the criminal histories of the two men, taken with the lesser part played by the applicant in the robbery, called for some distinction to be made in sentencing these two offenders. We consider that justice will be done to the applicant by reducing his sentence from imprisonment for seven years to imprisonment for five years. We observe in passing that, in arriving at the sentence imposed on Vandersyde, his Honour took into account his decision to refrain from making a declaration under s 161B(3)(b). His decision in that regard seems to have been motivated at least in part by a concern to avoid the impact on Vandersyde's parole prospects of recent amendments to the sentencing legislation considered in R v Collins (CA 238/1998; Sept 18 1998) and R v Booth (CA 338/1998; Mar 30 1998). Consistently with what was said in those two decisions, it is perhaps questionable whether it is legitimate to tailor the duration of a sentence by reference to a consideration of that kind; but, in relation to s 161B(3 )(b) of the Penalties and Sentences Act, the matter was not the subject of specific submissions and it is therefore preferable not to attempt to determine it on this application, in which the Crown did not in this Court seek a declaration under that provision. Apart from that consideration, it remains proper in the present case to take into account patterns and levels of sentencing that prevailed before those legislative amendments took effect: cf Siganto v The Queen (1998) 73 ALJR 162, 164 col 2E.

9. On that footing, we would allow the appeal by reducing the sentence imposed on the applicant from imprisonment for seven years to imprisonment for five years.