Geiger v The Queen

[1999] FCA 1870

FEDERAL COURT OF AUSTRALIA

Geiger v The Queen [1999] FCA 1870

HANK STEPHEN GEIGER v THE QUEEN
A 98 of 1999

FINN J
CANBERRA
23 DECEMBER 1999

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY

DISTRICT REGISTRY

A 98 OF 1999

BETWEEN:	HANK STEPHEN GEIGER Appellant
AND:	THE QUEEN Respondent
JUDGE:	FINN J
DATE OF ORDER:	23 DECEMBER 1999
WHERE MADE:	CANBERRA

THE COURT ORDERS THAT:

1.        the notice of motion be dismissed.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	A 98 OF 1999

BETWEEN:	HANK STEPHEN GEIGER Appellant
AND:	THE QUEEN Respondent

JUDGE:	FINN J
DATE:	23 DECEMBER 1999
PLACE:	CANBERRA

EX TEMPORE REASONS FOR JUDGMENT

1. I have before me a notice of motion seeking that the applicant, Hank Stephen Geiger, be granted bail pending the hearing of an appeal from the Supreme Court of the Australian Capital Territory.  The appeal Mr Geiger is bringing is against sentences imposed upon him by Gallop J of the Supreme Court on 17 November 1999.  These were sentences of four years' imprisonment in relation to an offence of committing an act of indecency, a sentence of two years' imprisonment in relation to an offence of escaping from lawful custody, sentences of 12 months' imprisonment in relation to each of two offences of assault occasioning actual bodily harm, and a sentence of 12 months' imprisonment in relation to an offence of acting as an accessory after the fact to robbery, these to be served concurrently.

2. There was a direction that there be a non-parole period of two years, dating from 10 November 1999.  The circumstances which are the subject of the offences in respect of which convictions had been entered arose out of an unprovoked and violent assault by Mr Geiger and another person upon a couple in Civic.  The appeal that is being prosecuted, as I have indicated, is simply an appeal against sentence, the applicant having pleaded guilty to each offence.  The grounds of the appeal are that the sentences were all in the circumstances manifestly excessive, that the trial judge erred in failing to give sufficient weight to the lesser role played by the appellant in the commission of the offences as to his co-offender, that the trial judge failed to give sufficient weight to the appellant's early pleas of guilty, and that his Honour erred in that he did not impose sentences that would, as far as practicable, facilitate the appellant's rehabilitation to society.

3. The principles to be applied on a bail application under O 52 are reasonably well-known and are not controversial.  I refer, for example, to the decision of Burchett J in Eastman v The Queen (1997) 72 FCR 190. I equally refer to the decision of Young CJ in Re Kulari [1978] VR 276. Subject to one amendment, I would adopt what is said by Young CJ at 277-278:

   "In the light of these authorities it is clear that bail will only be granted after conviction and pending an appeal in very exceptional circumstances.  It is not possible or desirable to attempt to describe what might be regarded as very exceptional circumstances, but the fact that there is a prima facie arguable ground of appeal is, I think, of very little weight where a ground of appeal is that the sentence imposed is too severe."

   The qualification I have to that observation is the use of the word "very";  the conventional formulation is simply "exceptional circumstances". 

4. The grounds upon which exceptional circumstances are sought to be established in this matter emerge from the affidavit of Debby Cameron of 17 December 1999, Ms Cameron being the applicant's mother, and that of Gabriella Jean Piscioneri of 21 December 1999, Ms Piscioneri being the applicant's solicitor.

5. There would appear to be two grounds relied on to make out the exceptional circumstances.  The first is that the applicant's partner has given birth to a child in the last few days and, secondly, that the applicant wishes to avail himself of drug rehabilitation services.  Both Ms Piscioneri and Ms Cameron emphasise these matters.  For my own part, I equally have had regard to the sentencing remarks of Gallop J in imposing sentence upon Mr Geiger.  Gallop J did emphasise that the commission of vicious and unprovoked assaults on people in the Civic area is a matter of great concern, and the corresponding responsibility the Court has to do what it can to protect the public.  He equally had a somewhat dismal view of Mr Geiger's prospects away from a life of crime. It is fair to say that the issue of the impending birth of a child was drawn to the judge's attention as well.

6. For my own part, I am unable to see anything in the material before me which could be regarded as constituting exceptional circumstances, as that term is understood in this setting.  There may be good and proper reasons why now Mr Geiger wishes to change what appears to have been a regrettable pattern in his life.  If such is the case, that is to be welcomed, but that desire does not constitute a circumstance warranting the grant of bail.  It is accepted in the notice of appeal that a period of imprisonment is inevitable.  In my view it is clear that even if the appeal is successful, it is likely that Mr Geiger, nonetheless, will be required to serve a significant period of imprisonment.

7. In those circumstances it does not seem to me that the Court can or should accede to the application.  Accordingly I dismiss the notice of motion.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.

Associate:

Dated:            12 January 2000

Counsel for the Appellant:	Ms G J Piscioneri
Solicitor for the Appellant:	G J Piscioneri & Co
Counsel for the Respondent:	Mr S Whybrow
Solicitor for the Respondent:	Director of Public Prosecutions
Date of Hearing:	23 December 1999
Date of Judgment:	23 December 1999