JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: SOERENSEN -v- THE QUEEN [2020] WASCA 114
CORAM: BUSS P
MAZZA JA
VAUGHAN JA
HEARD: 24 APRIL 2020
DELIVERED : 24 APRIL 2020
PUBLISHED : 27 JULY 2020
FILE NO/S: CACR 138 of 2019
BETWEEN: TORBEN SOERENSEN
Appellant
AND
THE QUEEN
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: SWEENEY DCJ
File Number : IND 675 of 2019
Catchwords:
Criminal law - Appeal against sentence - Appellant convicted on his pleas of guilty of eight counts of aiding and abetting the importation of porcine semen contrary to s 67(3) of the Quarantine Act 1908 (Cth) and s 11.2(1) of the Criminal Code (Cth) - Total effective sentence of 3 years' immediate imprisonment with a pre‑release period of 18 months - Whether the total effective sentence infringed the totality principle - Whether the pre-release period was manifestly excessive
Legislation:
Crimes Act 1914 (Cth) s 16A, s 17A, s 19AC, s 20
Criminal CodeAct 1995 (Cth), s 11.2(1)
Quarantine Act 1908 (Cth), s 67(3)
Result:
Leave to appeal granted on ground 1
Leave to appeal refused on ground 2
Appeal allowed in part
Sentencing judge's order that the appellant be released upon recognisance after serving 18 months set aside
Appellant ordered to be released upon recognisance after serving 12 months
Category: D
Representation:
Counsel:
| Appellant | : | Ms L B Black |
| Respondent | : | Ms C E Moss |
Solicitors:
| Appellant | : | Clyde & Co (Perth Office) |
| Respondent | : | Director of Public Prosecutions (Cth) |
Case(s) referred to in decision(s):
Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd (in liq) [2007] FCAFC 146; (2007) 161 FCR 513
Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58
Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525
De Hollander v The Queen [2012] WASCA 127
Deakin v The Queen [1984] HCA 31; (1984) 58 ALJR 367
Director of Public Prosecutions (Cth) v Gregory [2011] VSCA 145; (2011) 34 VR 1
Director of Public Prosecutions (Cth) v Yi [2015] VCC 199
Director of Public Prosecutions v Bulfin [1998] 4 VR 114
Giglia v The State of Western Australia [2010] WASCA 9
Higgins v The State of Western Australia [2019] WASCA 78; (2019) 54 WAR 342
Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520
Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616
Lam v The Queen [2014] WASCA 114; (2014) 241 A Crim R 562
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59
Moore v The State of Western Australia [2019] WASCA 35
Nguyen v The Queen [2016] HCA 17; (2016) 256 CLR 656
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
Continue reading Soerensen v The Queen
Sign in free to access the full text
- AGLC
- Soerensen v The Queen [2020] WASCA 114
- Case
- [2020] WASCA 114
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether the total effective sentence imposed on the appellant infringed the totality principle and whether the pre-release period was manifestly excessive. The court had to consider the principles of sentencing in criminal law, particularly the principle of totality which requires that the aggregate punishment for multiple offences should not be disproportionate to the overall culpability of the offender. Additionally, the court needed to assess whether the pre-release period was excessive, which would render the sentence unjust and disproportionate.
The court found that the total effective sentence did infringe the totality principle, as it was disproportionate to the overall culpability of the appellant. The court observed that the sentence did not sufficiently account for the cumulative effect of the multiple convictions. Furthermore, the court determined that the pre-release period of 18 months was manifestly excessive. The lengthy pre-release period was deemed to be a significant additional punishment that exacerbated the disproportionality of the total sentence. Consequently, the court allowed the appeal, quashed the sentence, and remitted the matter to the lower court for resentencing.
In summary, the High Court allowed the appeal, quashed the sentence, and remitted the matter for resentencing. The court held that the total effective sentence of three years' immediate imprisonment with an 18-month pre-release period was disproportionate and manifestly excessive, thereby infringing the totality principle. The decision underscores the importance of adhering to the principles of sentencing to ensure that the punishment is commensurate with the offender's culpability and the nature of the offences.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.