R v Geertz

[1995] QCA 240

COURT OF APPEAL

[1995] QCA 240

PINCUS JA
de JERSEY J

AMBROSE J

CA No 121 of 1995
THE QUEEN
v.

ALAN ROSS GEERTZ

BRISBANE
..DATE 26/04/95
PINCUS JA: This is an application for leave to appeal against
sentence in relation to two offences of misappropriation
involving about $18,000 in total. The smaller charge involved
only $172, and that produced a sentence of 6 months
imprisonment; the major charge, a sentence of 3 years
imprisonment. It was recommended that the applicant be
eligible for release on parole after a period of nine months.

At the time of commission of the offences, the applicant occupied the position of registrar of the Corinda State High School. Irregularities in the accounts were noticed and consequently an internal auditor came. When the applicant was questioned he did not cooperate, and declined to be interviewed by the police, but ultimately he pleaded guilty. The Judge was told the only dispute, and the only reason for delay in pleading guilty, was as to the amount involved.

It is convenient, as an example of what happened, to mention the larger sum of money taken, a sum of $11,668. The applicant had charge of that, and it was paid in under a scheme run by the P & C Association at the school to enable students to hire textbooks. This money came from the Government, plus contributions from the children of $70 each.

The details of the other offence do not appear to me to be of

any real significance because it is not in issue that the

applicant was in breach of trust as to all the money.

The applicant is 41 years of age and has no previous
convictions. The Judge below was told that the applicant
worked for the Education Department as a clerk for a long
time, then began his own small business which was a financial
disaster. It was submitted below that, "... under the weight
of the stress for various reasons and for various causes
Mr Geertz drifted into drug usage, drifted with the wrong
crowd, and thereafter to use his words, 'lost control of his
life'." It was added that it was a combination of his stress
and the depression which led to drug usage.

The submission made today is that the sentence which was imposed should be reduced because of a matter which I will now deal with. A medical certificate was placed before the Judge to the effect that the applicant has been diagnosed as infected with HIV. It was said that AIDS, that is the syndrome which the virus causes, would usually develop five to seven years after the infection. The medical certificate says that stress, including that of imprisonment, would "possibly exacerbate and accelerate the immune dysfunction associated with HIV infection".

In Smith (1987) 44 SASR 587, Chief Justice King, with whom the
other members of the Court of Criminal Appeal agreed, said
that generally:
"... ill health will be a factor tending to mitigate

punishment only when it appears that imprisonment will be
a greater burden on the offender by reason of his state
of health or when there is a serious risk of imprisonment
having a gravely adverse effect on the offender's

health."

The offender in that case was initially in a similar position
to the applicant, in that he had been diagnosed as having the
virus but had not developed AIDS. He was imprisoned for two
or three months before being released on bail, and during that
period he developed some symptoms; when he came out they went
away. The non-parole period which was three years was reduced
to nine months, it appears, principally on account of the
health problem. Then in McDonald (1988) 38 A.Crim.R. 470, the
New South Wales Court of Criminal Appeal regarded the
applicant having AIDS as a substantial mitigating factor. In
McDonald the applicant had progressed to having some symptoms,
as in the South Australian case. Those decisions were applied
in Victoria in Eliasen (1991) 53 A.Crim.R. 391.
Here, it is submitted by Mr Burns that the primary judge did
not take the health problem into account as a mitigating
factor. What His Honour said about it is as follows,
"You have a serious medical problem set out in a medical

report before me. You are suffering from AIDS. That is
a matter for the authorities and I have no reason to
doubt that you will receive appropriate consideration."

It may be that the reduction in the non-parole period from 18 months to 9 months could be regarded as having paid no regard to the health problem, but on a consideration of the matter that seems to me to be improbable.

There was some cooperation on the part of Mr Geertz; he did in fact plead guilty, as I have mentioned, but the amount of his cooperation was limited. And it seems to me rather unlikely that, having regard to the fact that the Judge was given the cases I have mentiioned and specifically referred to the health problem, the nine months non-parole period is explicable solely on the basis of the plea of guilty. It must, in my view, take into account the medical difficulty from which Mr Geertz was suffering.

I have been somewhat concerned as to whether the allowance which the Judge made - as is pointed out by Mr Campbell, the non-parole period is a quarter rather than a half of the head sentence - sufficiently takes the health problem into account.

It seems to me that this Court could not be justified in

interfering with the view which the Judge took of the matter.
Although one might, if considering the matter for the first
time as a Judge of first instance, have taken a slightly more
generous view, I do not think we are justified in reducing the

nine months.

The principal submission on behalf of the applicant was that
he should not be sent to prison at all and that his sentence
should be wholly suspended. Having regard to the authorities,
it is conceded that apart from the health problem, the three-
year head sentence would be perfectly proper; to reduce a
three-year head sentence, with a potential for release after
9 months to no imprisonment at all, seems to me plainly to be
a course which would give excessive weight to the health
problem which the applicant has.

To summarise then, the view I take of the matter is that the three year head sentence is within range. The nine month non- parole recommendation, as it seems to me, does give some weight to the health difficulty which the applicant suffers from, and in the circumstances I cannot see any justification for our interfering with the course the Judge has taken.

I would refuse the application.

de JERSEY J: I agree.

AMBROSE J: I agree.

PINCUS JA: The application is refused.

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