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…

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 Geertz

Details

AGLC: R v Geertz [1995] QCA 240
Case: [1995] QCA 240
Decision Date: 26/04/1995

CaseChat Overview and Summary

The case of R v Geertz was heard by the Queensland Court of Appeal. The appellant, Alan Ross Geertz, sought leave to appeal against his sentence for two counts of misappropriation totaling approximately $18,000. The primary judge had imposed a sentence of six months imprisonment for the smaller charge and three years imprisonment for the larger charge, with eligibility for parole after nine months. Geertz was a former registrar of Corinda State High School who had misappropriated funds from a scheme that allowed students to hire textbooks. The primary judge acknowledged Geertz's HIV status as a mitigating factor but did not reduce the sentence further.

The legal issues before the court included whether the primary judge had adequately considered Geertz's health condition as a mitigating factor and whether the sentence was excessive given the circumstances. The appeal hinged on whether the court should interfere with the primary judge's assessment of the mitigating factors, particularly the appellant's HIV status. The court referenced previous cases where health issues had been considered as mitigating factors, such as Smith, McDonald, and Eliasen. The court needed to determine whether Geertz's health condition warranted a more lenient sentence.

The Court of Appeal held that while the primary judge did consider the health condition, the sentence was within the appropriate range and did not excessively weigh the health issue. The court acknowledged the appellant's cooperation in pleading guilty, but the court did not believe that the sentence should be reduced to the extent of suspending all imprisonment. The judges noted that the non-parole period of nine months already reflected some consideration of the health issue. They found that reducing the sentence further would be disproportionate. The appeal was ultimately refused as the court did not find sufficient grounds to interfere with the primary judge's decision.

The final orders of the Court of Appeal were that the application for leave to appeal against sentence was refused. The judges, Pincus JA, de Jersey J, and Ambrose J, unanimously agreed on the outcome.

Orders