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Soerensen v The Queen

Soerensen v The Queen

Case [2020] WASCA 114 27 July 2020

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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
Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
Power v The…

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 Soerensen v The Queen

Details

AGLC: Soerensen v The Queen [2020] WASCA 114
Case: [2020] WASCA 114
Decision Date: 27 JULY 2020

CaseChat Overview and Summary

The appellant in this case, Soerensen, was convicted on his pleas of guilty of eight counts of aiding and abetting the importation of porcine semen, which violated specific sections of the Quarantine Act 1908 and the Criminal Code. The conviction led to a sentence of three years' immediate imprisonment, accompanied by a pre-release period of 18 months. Soerensen appealed the sentence, arguing that the total effective sentence and the length of the pre-release period were excessive and violated the totality principle. The appeal was heard in the High Court of Australia.

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