Soerensen v The Queen
[2020] WASCA 114
•27 JULY 2020
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 Queen [1974] HCA 26; (1974) 131 CLR 623
R v Hamilton Prawn Farm, Fortune Enterprises Australia QLDDC 29 March 2010
R v Hopkins [2008] NTSC 15; (2008) 22 NTLR 125
R v Kim QLDDC 31 May 2013
R v Limeke Corporation & Kim QLDDC 30 November 2012
R v Rajacic [1973] VR 636
R v Ruha; Ex parte Director of Public Prosecutions (Cth) [2010] QCA 10; [2011] 2 Qd R 456
R v Three Man Plus Pty Ltd & Kim QLDDC 31 January 2014
R v Ware [2019] TASSC 30
Roffey v The State of Western Australia [2007] WASCA 246
Stipkovich v The Queen [2018] WASCA 63
REASONS OF THE COURT:
The appellant has applied for leave to appeal against sentence.
The appellant was convicted, on his pleas of guilty before Sweeney DCJ in the District Court, of eight counts in an indictment.
The counts pleaded that on various dates between on or about 17 January 2012 and on or about 9 June 2015, at Perth, the appellant aided, abetted, counselled or procured the commission of an offence by GD Pork Pty Ltd against s 67(3) of the Quarantine Act 1908 (Cth) (the Quarantine Act), namely that GD Pork Pty Ltd imported into Australia porcine semen knowing that thing was an animal, plant or other good and the importation of the porcine semen was in contravention of the Quarantine Act, and GD Pork Pty Ltd obtained or was likely to have obtained a commercial advantage over their competitors or potential competitors, contrary to s 67(3) of the Quarantine Act and s 11.2(1) of the Criminal Code Act 1995 (Cth) (the Code).
The maximum penalty for an individual for:
(a)each offence the subject of counts 1 and 2 was 10 years' imprisonment or a fine not exceeding $200,000 or both; and
(b)each offence the subject of counts 3 to 8 was 10 years' imprisonment or a fine not exceeding $340,000 or both.
On 13 August 2019, the sentencing judge imposed a sentence of 2 years' immediate imprisonment in respect of each of the eight counts. All sentences, except the sentence for count 7, were ordered to commence on the same day, namely 13 August 2019. The sentence for count 7 was ordered to commence upon the appellant having served 12 months of the sentence for count 1. The total effective sentence was therefore 3 years' immediate imprisonment. The appellant was ordered to be released after serving 18 months, upon entering into a recognisance of $5,000 to be of good behaviour for a period of 18 months.
The grounds of appeal
The appellant relies upon two grounds of appeal.
Ground 1 alleges, in essence, that the total effective sentence offends the first limb of the totality principle and the pre‑release period is manifestly excessive. Ground 2 alleges, in essence, that the sentencing judge erred by failing properly to apply the parity principle when sentencing the appellant.
On 4 November 2019, Buss P referred the appellant's application for leave to appeal to the hearing of the appeal.
The outcome of the appeal
On 24 April 2020, at the conclusion of the hearing of the appeal, this court made orders, as follows:
(a)Leave to appeal granted on ground 1.
(b)Leave to appeal refused on ground 2.
(c)Appeal allowed in part.
(d)The sentencing judge's order that the appellant be released pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth) after serving 18 months, upon the appellant entering into a recognisance of $5,000 to be of good behaviour for a period of 18 months, be set aside.
(e)In substitution for that order, the appellant be released pursuant to s 20(1)(b) of the Crimes Act after serving 12 months, upon the appellant entering into a recognisance of $5,000 to be of good behaviour for a period of 24 months.
(f)Otherwise, the sentencing decision of the sentencing judge and the orders made by her Honour including the commencement date for the total effective sentence, namely 13 August 2019, not be disturbed.
When making those orders we said that reasons for judgment would be published at a later date. These are our reasons.
The facts and circumstances of the offending
The sentencing judge made the following findings of fact. They were not in dispute before her Honour or on appeal.
Background
The appellant was aged 32 years when his offending began and was aged 39 years when sentenced.
The appellant was born and raised in Denmark. In 2003, whilst studying agricultural economics at the University of Copenhagen, he received a grant enabling him to study at the University of Western Australia. After returning to Denmark for some time, the appellant came back to Perth in 2006 to study for a masters degree. He then returned to Denmark again whilst maintaining a long-distance relationship with his partner, an Australian, whom he had met in Australia.
The appellant worked as an agricultural consultant. He met Henrik Enderlein, who was then the chairman of an agricultural consultancy service. In 2007, the appellant wrote an article for a Danish agricultural magazine highlighting opportunities for Danish farmers to invest in pig farming in Western Australia. As a result, a group of Danish farmers, including Mr Enderlein, contacted the appellant. They expressed a desire to invest in pig farming in Western Australia. They asked the appellant to run the business. The appellant had limited experience in pig farming. However, he wanted to find a way to live in Western Australia permanently. He also viewed Mr Enderlein as a mentor. Consequently, the appellant accepted the proposal.
The appellant became the sole director of an Australian company, GD Pork Pty Ltd (GD Pork). Pork Australia APS (APS), a Danish company, was established and was the sole shareholder of GD Pork. The appellant used his life savings ($100,000) to purchase a 3% shareholding in APS. APS had three directors; namely, the appellant (a non-executive director), Mr Enderlein (the chairman), and Christian Peter Nymann (the chief executive officer). Mr Enderlein and Mr Nymann were Danish nationals and resided in Denmark. Mr Enderlein and Mr Nymann each controlled 48.5% of the shareholding in APS. The appellant set up the business structure for GD Pork in October 2007.
In November 2007, the appellant purchased properties in Pinjarra, Kojonup and Australind with capital provided by Mr Enderlein. The three properties were to be used by GD Pork to operate pig farms. Each of the major shareholders and another office holder in APS visited the properties. Mr Enderlein tended to visit the properties at least two to three times each year.
The major shareholders considered that the appellant had made a poor decision in choosing the properties. As a result, the appellant felt inadequate, guilty and beholden to the major shareholders to make the business successful. It was also in the appellant's interests, as a modest shareholder himself, to make the business successful.
The appellant held a comparatively less influential position in the overall structure of the business. The appellant was not permitted to run the properties as he thought fit and report to the other shareholders.
GD Pork began operating a commercial breeding program at the Pinjarra farm with a GD Pork herd. The farm housed a boar stud and a laboratory. The program included breeding through artificial insemination.
GD Pork imported porcine semen into Australia from Denmark, for the purposes of breeding at this location. The attraction of using artificial insemination with semen from Danish boars was that Denmark boars had a higher productivity rate. In other words, Danish sows produced more piglets per litter than Australian sows. They also produced a higher number of weaned piglets, and a higher quality of lean meat.
At all material times, a permit was required to import porcine semen into Australia. However, for reasons of practicality, no permits had been granted in Australia since 1995. The reason for the restriction upon importation was the risk of introducing disease, in particular Porcine Reproductive and Respiratory Syndrome (PRRS). Porcine semen from Denmark potentially contains PRRS. Artificial insemination is documented as a means by which the disease is spread. Australia does not have PRRS or the underlying virus. Between 2017 and 2019 Denmark still had PRRS despite having expended enormous sums of money each year to control the spread of the virus. The appellant was aware that a permit was required to import porcine semen into Australia and that GD Pork had not been granted a permit.
GD Pork did not sell breeding stock. All pigs bred at the Pinjarra farm were destined for slaughter or for use in the internal breeding program. Although this reduced the risk associated with the illegally imported semen, the risk nevertheless remained.
The involvement of GD Pork, Henning Laue and the appellant in the offending
The appellant's sentencing hearing was held concurrently with the sentencing of his related offenders, GD Pork and Henning Laue.
GD Pork
At the sentencing hearing, GD Pork was convicted, on its pleas of guilty before Sweeney DCJ, of 16 counts in an indictment.
Twelve counts alleged that between 3 April 2009 and on or about 12 January 2016, GD Pork unlawfully imported, introduced or otherwise brought into Australia porcine semen under circumstances of aggravation, contrary to s 67(3) of the Quarantine Act.
Four counts alleged that between on or about 28 June 2016 and on or about 20 January 2017, GD Pork contravened s 186(4) of the Biosecurity Act 2015 (Cth) (the Biosecurity Act) by importing conditionally non‑prohibited goods (being porcine semen) and in obtaining or potentially obtaining a commercial advantage over its competitors and potential competitors as a result of the importation of the porcine semen.
Eight of the counts against GD Pork concerned the importations in respect of which the appellant was charged and sentenced.
GD Pork was sentenced to a global fine of $500,000.
Mr Laue
At the sentencing hearing, Mr Laue was convicted, on his pleas of guilty before Sweeney DCJ, of seven counts in an indictment.
The counts alleged that on various dates between 10 March 2015 and 20 January 2017, at Perth, Mr Laue aided, abetted, counselled or procured the commission an offence, namely the importation of porcine semen, in contravention of s 67(3) of the Quarantine Act and s 11.2(1) of the Code.
Two counts related to the same importations for which the appellant was charged and sentenced.
Mr Laue was sentenced to a total effective sentence of 2 years' immediate imprisonment, to be released after serving 8 months upon entering into a recognisance of $3,000 to be of good behaviour for a period of 16 months.
The appellant
The appellant's offending involved aiding, abetting, counselling or procuring the commission of eight of the offences committed by GD Pork in circumstances of aggravation, by requesting from Mr Enderlein that porcine semen be imported and making arrangements for its importation to occur. The specific details of the appellant's offending are set out below.
With respect to count 1, the appellant emailed Mr Enderlein in December 2011. He wrote: 'If possible I would like to order five Landrace and eight Yorkshire'. This was a reference to the type and quantity of porcine semen the appellant wanted imported. On 17 January 2012, Peter Jorgensen and Jorgen Tornes (officers of APS at the relevant time) travelled from Denmark to Australia concealing the porcine semen in their luggage. On the same day, the semen was conveyed to the Pinjarra farm and used to artificially inseminate 12 GD Pork sows.
With respect to count 2, Mr Enderlein emailed the appellant on 30 October 2012. He wrote: 'Planning for 10L and 5 per cent or 12L and 3-4D. What do you want? Anything else you would like me to bring from Denmark or anything you want me to find out or think about before arriving?'. The effect of this email was that Mr Enderlein was asking the appellant what breeds and quantity of porcine semen Mr Enderlein should import, and if there was anything further that the appellant wanted. On 31 October 2012, the appellant, in effect, asked Mr Enderlein to modify the order (that is, alter the quantity and type of porcine semen to be imported) by telling Mr Enderlein that one of the types of porcine semen was not suitable. He wrote: 'I would like to have 10L and 5Y. If that's too many, you can reduce the Y. Unfortunately, D is not suitable this time'. On 20 November 2012, Mr Enderlein travelled from Denmark to Australia, concealing the porcine semen in his luggage. On the same day, the semen was conveyed to the Pinjarra farm and used to artificially inseminate GD Pork sows.
With respect to count 3, Mr Enderlein emailed the appellant on 12 April 2013, notifying the appellant of the number of portions of porcine semen he intended to import and asking the appellant which types were required. He wrote: '15-16 portions but which breed?'. The appellant responded: '10 Yorkshire and five Landrance, thanks'. On 30 April 2013, Mr Enderlein travelled from Denmark to Australia, concealing the porcine semen in his luggage. Upon arrival, the appellant had arranged for Peter Karow (Pinjarra farm manager at the relevant time) to meet Mr Enderlein at the Atrium Hotel in Mandurah to collect the porcine semen. Mr Karow conveyed the semen to the Pinjarra farm, where it was used to artificially inseminate 12 GD Pork sows. The appellant, together with Mr Karow, performed the artificial inseminations.
With respect to count 4, Mr Enderlein emailed the appellant on 10 July 2013, asking if entry visas were still valid. He wrote: 'Just for your information, suppose the entry visa is still valid'. On 21 July 2013, the appellant responded: 'Yes, visa still valid. You are arriving on Thursday night so we need to rearrange the weaning slightly. I can fit in 10Y but that's all this time'. The effect of the email was to confirm the validity of the visa, inform Mr Enderlein that the weaning schedule would need to be rearranged, and telling Mr Enderlein which pigs the appellant could inseminate at that time, which was limited to 10 pigs. On 8 August 2013, Mr Enderlein travelled from Denmark to Australia, concealing the porcine semen in his luggage. On the same day, the semen was conveyed to the Pinjarra farm and used to artificially inseminate seven GD Pork sows.
With respect to count 5, Mr Laue (Production Manager of GD Pork at the relevant time) emailed Mr Karow and the appellant on 18 February 2014, querying how the appellant normally chose sows for what Mr Laue called 'special semen' and providing the appellant with a list. He wrote: 'I don't know how you normally choose sows for special semen but in attached list is sows with CEFN scores 3, 4 and 5, just for Peter to handle it by weaning tomorrow and Thursday'. The appellant then informed Mr Laue that the farm manager would be weaning 23 sows on Thursday and the appellant would choose the best 15 sows. He responded: 'Peter is weaning 16 large white and seven Landrace on Thursday. We will choose the 10 and five best of them'. The appellant was ensuring that the sows were ready for the purposes of the illegal importation of porcine semen. On 25 February 2014, Mr Enderlein travelled from Denmark to Australia, concealing the porcine semen in his luggage. On the same day, the semen was conveyed to the Pinjarra farm and used to artificially inseminate 12 GD Pork sows. The appellant, either alone or with others, performed the artificial inseminations.
With respect to count 6, the appellant emailed Mr Enderlein on 19 September 2014, specifying the breeds and quantities of porcine semen sought. He wrote: 'Five Duroc, eight Landrace, seven Yorkshire, if possible'. Mr Enderlein responded: 'Order placed. It's happening'. On 21 October 2014, Mr Enderlein travelled from Denmark to Australia, concealing the porcine semen in his luggage. On the same day, the semen was conveyed to the Pinjarra farm and used to artificially inseminate 16 GD Pork sows. The appellant, either alone or with others, performed the artificial inseminations.
With respect to count 7, Mr Laue emailed Mr Karow and the appellant on 17 February 2015 stating the type and quantity of porcine semen that he required. He wrote: 'On weaning day 05/03/2015, we need to wean sows to be mated with special semen on 10/03/2015. In my opinion, we need three portions of Race 45 semen, four portions of Race 12 semen and six portions of Race 36 semen, as we don't have suitable sows for more inseminations'. The appellant responded: 'Sounds good'. The appellant then updated Mr Enderlein on 18 February 2015, adopting Mr Laue's advice. He wrote: 'Updated order. If it's still possible to change the order, then it's three times D and six times Y instead'. Mr Enderlein responded: 'No problem. We can easily bring it up to 20'.
On 19 February 2015, the appellant wrote to Mr Laue: 'also, Henrik says that he can bring up to 20 portions. Should we get more sows?'. Mr Laue indicated that he could not organise any more sows which were suitable: 'As regards semen, we have 65 matings per week but we can't get more suitable sows'. On 10 March 2015, Mr Enderlein travelled from Denmark to Australia, concealing the porcine semen in his luggage. On the same day, the semen was conveyed to the Pinjarra farm and used to artificially inseminate 18 GD Pork sows. The appellant, either alone or with others, performed the artificial inseminations.
With respect to count 8, Mr Laue emailed the appellant on 18 April 2015, providing him with information to enable the appellant to specify to Mr Enderlein a suitable date of delivery for the porcine semen: 'Dates for use of special D semen. If it is the Duroc breed that determines when special semen should be used, then the possible dates of delivery can be seen from the attached summary'. The appellant then forwarded this information to Mr Enderlein on 20 April 2015, specifying: 'If the breed is the determining factor for your next visit, it should be on the following dates … 9 June 2015'. On 7 May 2015, Mr Laue emailed Mr Enderlein and the appellant, providing them with information for the purposes of the discussion about inseminating sows on 9 June 2015. He stated: 'Outline for selection of candidates for special semen 9 June 2015. Herewith outline for a chat about sows for insemination 9 June 2015'. On 9 May 2015, Mr Laue sent a detailed email to Mr Enderlein and the appellant, specifying the desirable type and quantity of porcine semen: 'I don't know any more what the conditions are for buying special semen in Denmark but I hope that it's possible to ensure that the semen intended for producing boars is different from the semen intended for producing gilts'. On 9 June 2015, Mr Enderlein travelled from Denmark to Australia, concealing the porcine semen in his luggage. On the same day, the semen was conveyed to the Pinjarra farm and used to artificially inseminate 10 GD Pork sows. The appellant, either alone or with others, performed the artificial inseminations.
The appellant was involved in multiple further email conversations about the logistics of Danish porcine semen in the GD Pork herd.
The cessation of the offending
In February 2017, the offending was discovered as a result of information given by a third party to the authorities. Biosecurity risk assessment warrants were executed by the Department of Agriculture. Testing was negative for PRRS in the GD Pork herd.
On 11 July 2017, 100 pig hair samples were seized from GD Pork farms for DNA analysis, comparing their reference samples to a database maintained by the Danish Pig Research Centre which proved that 14 of the GD Pork pigs were the direct offspring of Danish sires, 11 of which were held in Danish artificial insemination stations.
The appellant was arrested on 28 September 2018. Three days later GD Pork went into voluntary administration. On 28 May 2019, the company went into liquidation.
The sentencing remarks
The sentencing judge made the following findings and observations in her sentencing remarks.
The offending was 'very serious'. It represented blatant and arrogant disregard for Australia's biosecurity protections. The importing was for commercial advantage. The offending occurred over several years and as part of a course of conduct.
The 'prime movers' were Mr Enderlein and his associates. However, this did not detract from the seriousness of the appellant's active involvement.
Although the appellant's involvement was not critical to the success of importing the porcine semen, the following factors were critical to the overall offending:
(a)the appellant's provision of information as to the type and quantity of porcine semen that was required;
(b)the appellant ensuring that the correct number of sows and the correct type of sows were available in Australia;
(c)the appellant's involvement in the actual artificial insemination on several occasions; and
(d)the appellant's feedback as to how the breeding program was progressing.
Her Honour noted that the appellant had an important role to play, and played it willingly.
The appellant was reasonably young and inexperienced, given the degree of trust that was placed on him in running the Australian operation. However, the sentencing judge considered this to be of limited mitigatory value because once the appellant became involved his role was critical in specifying what breeds and what quantities were required.
The appellant participated in the actual artificial insemination. Although her Honour considered that the appellant had been 'influenced to offend', he nevertheless took on this role voluntarily as a director of GD Pork.
The sentencing judge proceeded 'on the basis that, financially, [the appellant would] not salvage anything from the Australian company or the Danish company'.
The appellant entered a guilty plea at an early opportunity and after disclosure. This amounted to an acceptance of responsibility and a willingness to allow justice to take its course.
The appellant's personal statement dated 8 August 2019, while indicating regret for the implications of the offending upon himself and his family, showed a degree of genuine remorse and insight into the potential harm to Australian industry.
The offences were committed, to some extent, under the influence of older, more experienced and persuasive members of the APS board. The importations were not instigated by the appellant.
The appellant's desire to live in Australia, because of his relationship with his future wife, contributed to him feeling constrained by his employment. This compromised the appellant's judgment, but had only some mitigatory value.
This was the appellant's first offence. He was of prior good character. The appellant did not stand to benefit financially from the offending. In part, the adverse publicity received as a result of the investigation; the charges; and the fact that the company had been wound up, meant that the appellant has little or no prospect of any benefit from the 3% shareholding he continued to hold in APS.
There was a reasonable prospect of the appellant obtaining employment again in the agricultural industry, but the likelihood of employment in a similar capacity was reduced.
The prospect of the appellant re-offending was very low. However, that fact did not impact upon considerations of general deterrence.
The appellant has suffered chronic stress as a result of the offences. He experienced anguish in having let down his family. The appellant has very young children. He is a loving father. After he was charged the appellant cared for the children while his wife, a medical practitioner, was working.
Her Honour reduced the appellant's head sentence for each offence by 30% on account of the mitigatory factors mentioned from [52] ‑ [62] above.
Ground 1: the appellant's submissions
Counsel for the appellant submitted that the total effective sentence of 3 years' imprisonment infringed the first limb of the totality principle and that the length of the pre‑release period, namely 18 months, was manifestly excessive.
Ground 1: the Crown's submissions
Counsel for the Crown submitted that the appellant had failed to demonstrate that the total effective sentence imposed by the sentencing judge was unreasonable or plainly unjust. The appellant had also failed to demonstrate a lack of appropriate proportionality between the total effective sentence and the minimum non-parole period. There was no foundation for a conclusion that her Honour had erred in the exercise of either aspect of her discretion.
Ground 1: its merits
The general sentencing principles applicable to federal offences are set out in div 2 of pt 1B of the Crimes Act. See Hili v The Queen.[1]
[1] Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 [23] (French CJ, Gummow, Hayne, Crennan, Kiefel & Bell).
By s 68 of the Judiciary Act 1903 (Cth), some State or Territory laws in relation to the sentencing of federal offenders are picked up and applied when a State or Territory court, exercising federal jurisdiction conferred by s 68, sentences a federal offender. However, to the extent that pt 1B of the Crimes Act makes other provision, State and Territory laws in relation to the sentencing of offenders are not picked up. See Hili [21].
Section 16A(1) of the Crimes Act provides that, in determining the sentence to be passed, or the order to be made, in respect of any person for a federal offence, a sentencing court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence.
By s 16A(2), in addition to any other matters, the court must take into account such of the matters listed in s 16A(2) as are relevant and known to the court.
Section 17A(1) provides, relevantly, that a court shall not pass a sentence of imprisonment on any person for a federal offence unless the court, after having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case.
In Hili, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ held that s 16A of the Crimes Act accommodates the application of common law sentencing principles because those principles give relevant content to the words in s 16A(1) 'of a severity appropriate in all the circumstances of the offence', and to the words in s 16A(2)(k) 'the need to ensure that the person is adequately punished for the offence' [25]. Accordingly, concepts such as personal and general deterrence and other common law sentencing principles are accommodated in s 16A, even though they are not specifically referred to. However, s 16A does not permit generalisations to be made across all forms of federal offences about how individual sentences are to be fixed [25].
The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences must bear a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving a term of imprisonment), viewed in their entirety, and after having regard to all relevant circumstances, including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), and the total effective sentences imposed in comparable cases.
The practical effect of the totality principle is ordinarily to arrive at a total effective sentence which is less than that which would have been arrived at merely by adding up all of the terms appropriate for the individual offences. See Roffey v The State of Western Australia.[2] Also, the severity or leniency of an individual sentence (which is not manifestly excessive or manifestly inadequate) is relevant in evaluating whether the total effective sentence infringes the first limb of the totality principle. See Giglia v The State of Western Australia.[3]
[2] Roffey v The State of Western Australia [2007] WASCA 246 [26] (McLure JA; Steytler P & Miller JA agreeing).
[3] Giglia v The State of Western Australia [2010] WASCA 9 [40] (Owen JA; McLure P & Pullin JA agreeing).
The guidance afforded by comparable cases is flexible rather than rigid. The mere fact that a sentence is within the range of other sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact that a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.
A sentencing range for comparable offences is merely one of the factors to be taken into account in deciding whether an individual sentence is manifestly excessive or a total effective sentence infringes the first limb of the totality principle. A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. However, a sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case.
When an intermediate appellate court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, the court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.
If, in a particular case where an infringement of the first limb of the totality principle is alleged, there are no directly comparable cases, an intermediate appellate court is not precluded from deciding that a total effective sentence does or does not infringe the first limb of the totality principle. It merely has the consequence that the court has no directly comparable cases to provide a yardstick against which to judge the adequacy of the total effective sentence imposed at first instance. However, previous sentencing ranges are only one pointer to the adequacy of a sentence. See Moore v The State of Western Australia.[4]
[4] Moore v The State of Western Australia [2019] WASCA 35 [51] (Buss P & Mazza JA).
Except where a mandatory sentence is prescribed, a sentencing judge exercises a discretionary judgment which is subject to applicable statutory provisions and judge-made law. See Barbaro v The Queen.[5]
[5] Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58 [25] (French CJ, Hayne, Kiefel & Bell JJ).
The discretion conferred on sentencing judges is, of course, of fundamental importance and this court may not substitute its opinion as to sentencing for that of the sentencing judge merely because it would have exercised the discretion in a different manner. See Lowndes v The Queen.[6]
[6] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne & Callinan JJ).
It is well established that:
(a)a judge sentencing an offender for multiple offences must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence as well as questions of totality;
(b)if, in fixing the appropriate sentence for each offence, proper principle is not applied, orders made for cumulation or concurrence will be made on an imperfect foundation; and
(c)if an appropriate sentence is not fixed for each offence, the failure to do so may give rise to artificial claims of disparity between co‑offenders or otherwise distort general sentencing practices in relation to particular offences.
See Pearce v The Queen;[7] Nguyen v The Queen.[8]
[7] Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 [45] ‑ [48] (McHugh, Hayne & Callinan JJ).
[8] Nguyen v The Queen [2016] HCA 17; (2016) 256 CLR 656 [37] (Bell & Keane JJ).
However, a sentencing judge may, in the application of the totality principle, achieve an appropriate total effective sentence either by ordering one or more of the individual sentences to be served wholly or partly concurrently or by reducing the otherwise appropriate length of one or more of the individual sentences. See Mill v The Queen;[9] Johnson v The Queen[10] and Nguyen [64]. Although the joint judgment in Mill expressed a preference for achieving an appropriate total effective sentence by, where practicable, making one or more of the individual sentences wholly or partly concurrent, it is not erroneous for a sentencing judge to lower one or more of the individual sentences below what would otherwise be appropriate.
[9] Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59, 63 (Wilson, Deane, Dawson, Toohey & Gaudron JJ).
[10] Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 [26] (Gummow, Callinan & Heydon JJ).
If a sentencing judge decides, in the application of the totality principle, to achieve an appropriate total effective sentence by lowering one or more of the individual sentences below what would otherwise be appropriate, the judge should expressly state that fact in his or her sentencing remarks.
Section 16A of the Crimes Act accommodates the application of the totality principle. See Johnson [15]; Hili [25]. Section 16B of the Crimes Act requires a court sentencing a federal offender to have regard to any other sentences already imposed on the person. See Postiglione v The Queen.[11]
[11] Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 308 (McHugh J).
Section 19AB(1) of the Crimes Act provides, relevantly, that subject to s 19AB(3), where a person is convicted of two or more federal offences at the same sitting, and a court imposes on the person federal sentences of imprisonment that, in the aggregate, exceed 3 years, and at the time the sentences are imposed the person is not already serving or subject to a federal sentence, the court must either fix a non-parole period in respect of those sentences or make a recognisance release order. Section 19AB(3) confers on the court a discretion, in particular circumstances, to decline to fix a non-parole period or make a recognisance release order.
Section 19AC(1) provides, relevantly, that subject to s 19AC(3) and s 19AC(4), where a person is convicted of two or more federal offences at the same sitting, and a court imposes on the person federal sentences of imprisonment that, in the aggregate, do not exceed 3 years, and at the time the sentences are imposed the person is not already serving or subject to a federal sentence, the court must make a recognisance release order in respect of those sentences and must not fix a non-parole period. Section 19AC(4) confers on the court a discretion, in particular circumstances, to decline to make a recognisance release order.
Section 20 is concerned with the conditional release of federal offenders after conviction.
By s 20(1)(a), where a person is convicted of a federal offence or federal offences, the sentencing court may, if it thinks fit, by order, release the person, without passing sentence on him or her, upon his or her giving security, with or without sureties, by recognisance or otherwise, to the satisfaction of the court, that he or she will comply with the conditions listed in s 20(1)(a).
Section 20(1)(b) provides that where a person is convicted of a federal offence or federal offences, the sentencing court may, if it thinks fit, sentence the person to imprisonment in respect of the offence or each offence, but direct, by order, that the person be released, upon giving security of the kind referred to in s 20(1)(a), either forthwith or after he or she has served a specified period of imprisonment in respect of that offence or those offences, that is calculated in accordance with s 19AF(1).
Where a sentencing judge fixes a non-parole period, the non-parole period is part of the sentence. See R v Rajacic;[12] R v Hopkins;[13] R v Ruha; Ex parte Director of Public Prosecutions (Cth).[14]
[12] R v Rajacic [1973] VR 636, 641 (Smith ACJ, Newton J agreeing).
[13] R v Hopkins [2008] NTSC 15; (2008) 22 NTLR 125 [12] (Southwood J).
[14] R v Ruha; Ex parte Director of Public Prosecutions (Cth) [2010] QCA 10; [2011] 2 Qd R 456 [45] (Keane & Fraser JJA & Atkinson J).
The non-parole period is the minimum period of imprisonment that justice requires the offender to serve. It mitigates the offender's punishment in favour of rehabilitation through conditional freedom after imprisonment for the minimum period. See Power v The Queen;[15] Deakin v The Queen;[16] Bugmy v The Queen.[17]
[15] Power v The Queen [1974] HCA 26; (1974) 131 CLR 623, 628 ‑ 629 (Barwick CJ, Menzies, Stephen & Mason JJ).
[16] Deakin v The Queen [1984] HCA 31; (1984) 58 ALJR 367, 367 (Gibbs CJ, Murphy, Wilson, Brennan & Dawson JJ).
[17] Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525, 531 (Mason CJ & McHugh J), 536 (Dawson, Toohey & Gaudron JJ).
The fixing of a non-parole period serves the interests of the community rather than those of the offender, even though a minimum term confers a benefit on the offender. See Bugmy (531).
The factors which a sentencing judge must take into account when fixing a non-parole period are the same as those applicable to the setting of the head sentence. However, the weight to be given to these factors, and the manner in which they are relevant, will differ in consequence of the different purposes underlying each function. See Bugmy (531). Sentencing factors which count against mitigation may increase the length of the head sentence and also the proportion that the non-parole period bears to the head sentence. The converse applies to sentencing factors in favour of mitigation. See Lam v The Queen.[18] Any necessary deterrent and punitive effects of sentences for a particular offence must be reflected both in the head sentence and also in the non-parole period. See Hili [41].
[18] Lam v The Queen [2014] WASCA 114; (2014) 241 A Crim R 562 [56] - [57] (McLure P; Buss & Newnes JJA agreeing); applied in Stipkovich v The Queen [2018] WASCA 63 [34] (Mitchell & Beech JJA and Allanson J).
There is no judicially determined norm or starting point (whether as a percentage of the head sentence or otherwise) for the period of imprisonment that a federal offender should actually serve in prison before release on parole. In particular, it is wrong to begin from some assumed starting point and then seek to identify 'special circumstances'. Rather, a sentencing judge must determine the length of the non-parole period by reference to, and application of, the principles identified by the High Court in Power, Deakin and Bugmy. See Hili [44]; Stipkovich [35].
It is necessary that both the head sentence and any non-parole period reflect the deterrent and punitive effects of a sentence for a serious offence. See, generally, Director of Public Prosecutions (Cth) v Gregory.[19] An unduly short non-parole period for a serious offence may, depending upon the facts and circumstances of the particular case, tend to undermine the sentencing considerations of personal and general deterrence. See, generally, Director of Public Prosecutions v Bulfin.[20]
[19] Director of Public Prosecutions (Cth) v Gregory [2011] VSCA 145; (2011) 34 VR 1 [66] (Warren CJ, Redlich JA and Ross AJA).
[20] Director of Public Prosecutions v Bulfin [1998] 4 VR 114, 132 (Charles JA).
The statements of principle to which we have referred (including, most importantly, those of the High Court in Power (628 ‑ 629), Deakin (367) and Bugmy (531, 536)) in relation to determining a non‑parole period for a federal offence or federal offences, apply by analogy in determining whether a person who has been sentenced to a term of imprisonment for a federal offence or federal offences should be released under s 20(1)(b), either forthwith or after he or she has served a specified period of imprisonment in respect of that offence or those offences. See Hili [39] ‑ [44]; De Hollander v The Queen.[21]
[21] De Hollander v The Queen [2012] WASCA 127 [80] ‑ [83] (Buss JA).
We turn to consider such of the matters specified in s 16A(2) of the Crimes Act as are relevant in the present case and known to the court.
As to s 16A(2)(a), we have already recounted or referred to the nature and circumstances of each of the offences including the appellant's role in the criminal enterprise.
As to s 16A(2)(b), there are no other offences that are required or permitted to be taken into account.
As to s 16A(2)(c), the offences charged in counts 1 to 8 occurred between about 17 January 2012 and about 9 June 2015. The appellant's criminality was not isolated or opportunistic. It involved planning and premeditation.
As to s 16A(2)(d), the 'victims' of the offending were potentially members of the Australian community who may have been affected adversely if PRRS had been introduced into Australia.
As to s 16A(2)(e), the sentencing judge did not make any findings that any actual injury, loss or damage had resulted from the offences.
Section 16A(2)(ea) is not relevant.
As to s 16A(2)(f), as we have mentioned, the sentencing judge noted that the appellant had prepared a personal statement dated 8 August 2019. Her Honour found that the statement showed a degree of genuine remorse and insight into the potential harm to Australian industry.
Section 16A(2)(fa) is not relevant.
As to s 16A(2)(g), the appellant pleaded guilty to all of the charged offences at an early opportunity and after disclosure. Her Honour found that this amounted to an acceptance of responsibility and a willingness to allow justice to take its course. Although the Crown's case against the appellant was strong, the appellant's pleas saved time and resources.
As to s 16A(2)(h), the appellant did not cooperate, to any material extent, with law enforcement authorities in the investigation of the charged offences or any other offences.
As to s 16A(2)(j), the sentences under consideration are likely to have a significant deterrent effect on the appellant.
As to s 16A(2)(ja), the sentences under consideration are likely to have at least some deterrent effect on some other persons who are informed of the facts and circumstances of the appellant's offending and the sentences imposed on him.
As to s 16A(2)(k), it is essential to ensure that the appellant is adequately punished for the offences having regard, in particular, to the objective seriousness of his offending (including his role within the criminal enterprise) and the important sentencing factor of general deterrence with a view to ensuring proper compliance with Australia's biosecurity laws.
As to s 16A(2)(m), the character, antecedents, age, means and mental condition of the appellant are apparent from our account of the facts and circumstances of the offending and her Honour's sentencing remarks. His physical condition appears to be satisfactory.
As to s 16A(2)(n), it appears that the appellant has excellent prospects of rehabilitation and he is most unlikely to reoffend.
As to s 16A(2)(p), it is probable that the sentences imposed will have an adverse effect on the appellant's family. He will be unable to support his wife or children financially or emotionally. However, it appears that his children will be appropriately cared for financially and emotionally by his wife.
The majority in Hili noted that in dealing with appeals against sentences passed on federal offenders, it is necessary for there to be consistency of decisions throughout Australia. That consistency is to be achieved through the work of intermediate appellate courts. An intermediate appellate court should not depart from an interpretation of Commonwealth legislation by another intermediate appellate court, unless convinced that that interpretation is plainly wrong. Similarly, an intermediate appellate court should not depart from what is decided by another intermediate appellate court in considering the sufficiency of sentences passed on federal offenders at first instance, unless convinced that the decision is plainly wrong [57].
In the present case, counsel for the appellant referred to a number of first instance sentencing decisions, but did not refer to any intermediate appellate court sentencing decisions. See R v Ware;[22] Director of Public Prosecutions (Cth) v Yi;[23] R v Three Man Plus Pty Ltd & Kim;[24] R v Kim;[25] R v Limeke Corporation & Kim;[26] and R v Hamilton Prawn Farm, Fortune Enterprises Australia.[27]
[22] R v Ware [2019] TASSC 30.
[23] Director of Public Prosecutions (Cth) v Yi [2015] VCC 199.
[24] R v Three Man Plus Pty Ltd & Kim QLDDC 31 January 2014.
[25] R v Kim QLDDC 31 May 2013.
[26] R v Limeke Corporation & Kim QLDDC 30 November 2012.
[27] R v Hamilton Prawn Farm, Fortune Enterprises Australia QLDDC 29 March 2010.
Counsel for the Crown submitted that there were no comparable cases decided by intermediate appellate courts.
We have had regard to the first instance decisions cited by counsel for the appellant. However, the guidance they provide is minimal. Each decision was not reviewed on appeal. Also, six cases decided over a period of nine years are not adequate to establish a sentencing pattern. Further, although there are some similar features between some of those cases and the present case there are also distinguishing features.
In the present case, the individual sentences of imprisonment imposed by the sentencing judge were not challenged.
We are satisfied, after analysing and weighing all relevant facts and circumstances (including the sentencing judge's unchallenged findings of fact) and all relevant sentencing factors (including such of the matters set out in s 16A(2) of the Crimes Act as were relevant and known to the court) in the context of:
(a)the maximum penalty for each offence;
(b)the overall seriousness of the appellant's offending considered as a whole;
(c)the particular importance of general deterrence as a sentencing factor; and
(d)all matters of mitigation,
that the total effective sentence of 3 years' immediate imprisonment was not unreasonable or plainly unjust. Some accumulation of the individual sentences was necessary in order properly to mark the overall seriousness of the appellant's offending considered as a whole, having regard to all relevant facts and circumstances and all relevant sentencing factors. The appellant's offending was sustained, blatant and dishonest. It was motivated by a desire for commercial advantage. His offending carried the risk, even though it was a very low risk, of introducing diseases into Australian pork herds.
However, we are satisfied, after analysing and weighing all relevant facts and circumstances (including her Honour's unchallenged findings of fact) and all relevant principles relating to the making of a recognisance release order and the fixing of a pre‑release period, in the context of:
(a)the maximum penalty for each offence;
(b)the overall seriousness of the appellant's offending considered as a whole;
(c)the particular importance of general deterrence as a sentencing factor; and
(d)all matters of mitigation,
that the pre‑release period of 18 months was unreasonable or plainly unjust. The interests of justice (including appropriate punishment and personal and general deterrence), in all the circumstances (including the appellant's overall offending, his favourable personal circumstances and antecedents, his pleas of guilty and the other mitigating factors), did not require that the appellant serve a pre‑release period of 18 months. The pre‑release period fixed by her Honour was in excess of the pre‑release period that was reasonably required in order to reflect and give effect to all relevant sentencing factors.
Accordingly, we allowed the appeal in part.
This court had the material necessary to resentence the appellant.
Pursuant to s 19AC and s 20(1)(b) of the Crimes Act, and after taking into account all relevant facts and circumstances (including the sentencing judge's unchallenged findings of fact) and all relevant principles relating to the making of a recognisance release order and the fixing of a pre‑release period, in the context of:
(a)the maximum penalty for each offence;
(b)the overall seriousness of the offending as a whole;
(c)the particular importance of general deterrence as a sentencing factor; and
(d)all matters of mitigation,
we ordered that the appellant be released pursuant to s 20(1)(b) of the Crimes Act after serving 12 months, upon the appellant entering into a recognisance of $5,000 to be of good behaviour for a period of 24 months.
Otherwise, we ordered, relevantly, that her Honour's sentencing decision and her Honour's orders including the commencement date for the total effective sentence, namely 13 August 2019, not be disturbed.
Ground 2
Ground 2 alleges that the sentencing judge erred by failing properly to apply the parity principle when sentencing the appellant in that the sentence imposed by her Honour on the appellant (namely 3 years' immediate imprisonment with a pre‑release period of 18 months) compared to the sentence imposed by her Honour on GD Pork (namely a global fine of $500,000) gave rise to a justifiable sense of grievance on the appellant's part.
Counsel for the appellant referred to GD Pork having engaged in the criminal enterprise for a significantly longer period than the appellant and to GD Pork having received a penalty that reflected 'a little over 2% of the maximum available fine'. According to counsel, the sentence imposed upon the appellant was not commensurate with the sentence imposed upon GD Pork.
The parity principle was examined recently by this court in Higgins v The State of Western Australia.[28] It is unnecessary to restate the principle.
[28] Higgins v The State of Western Australia [2019] WASCA 78; (2019) 54 WAR 342.
In the present case, when the sentencing judge imposed sentence on the appellant and GD Pork, GD Pork was in liquidation. By s 16C(1) of the Crimes Act, a court imposing a fine must take into account the financial circumstances of the offender, to the extent that is known. However, the fact that a body corporate is in liquidation should not dissuade the court from imposing an appropriate penalty, which can have value as a general deterrent even though the penalty may not be recovered. See Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd (in liq).[29]
[29] Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd (in liq) [2007] FCAFC 146; (2007) 161 FCR 513 [20] (Moore, Dowsett & Greenwood JJ).
We are satisfied that, in the context of the parity principle, there was an obvious and significant difference between the appellant and GD Pork. The appellant was an individual who was liable to be imprisoned on each count. GD Pork was a body corporate that was liable to a fine on each count.
There is a fundamental difficulty in comparing a sentence of imprisonment imposed on an individual with a fine imposed on a body corporate.
In our opinion, given that fundamental difference:
(a)the facts and circumstances of the appellant and the facts and circumstances of GD Pork, for the purposes of sentencing; and
(b)the sentences imposed on them by her Honour,
are incapable of giving rise to a legitimate or justifiable sense of grievance on the part of the appellant or of giving the appearance in the mind of an objective observer that justice has not been done as between the appellant and GD Pork.
Ground 2 is without merit.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JM
Research Associate to the Honourable Justice Buss27 JULY 2020
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